Timothy Tucker v. Alstom Power

connection with that injury. Employee's left leg is shorter than his right, he walks with a limp, and he wears a shin guard on the left leg to protect from further injury. Employee became interested in welding as a career so he wouldn't have to stand and walk so much. Employee's union was aware of his left leg condition and would not call him out on jobs requiring extensive walking.

In 1989, employee sustained a right shoulder injury after a slip and fall at work. Doctors diagnosed a rotator cuff tear and performed a surgical repair. Employee missed almost a year of work as a result of this injury. Employee initially experienced a good result after surgery but suffered a gradual loss of strength and function in his shoulder beginning in 2001. Employee turned down jobs because of his right shoulder.

In July 2001, employee saw a chiropractor for shooting pain in his lower back. The chiropractor noted radiographic findings of mild degeneration, spinal instability, and articular joint narrowing with subluxation from L3 to L5, and recommended employee try a back brace.

On October 3, 2001, employee was working for employer as a welder and boilermaker when he injured his low back. The job that day involved cutting up sections of a boiler. Employee and a coworker were catching panels of the boiler tube as they were cut out of the boiler. Employee and the coworker then carried the panels to a knee-high wall and hoisted them over. The individual panels weighed between 150 and 200 pounds. At one point, employee's coworker walked off the job. Employee tried to carry on by himself. When employee was lifting a panel, he heard a pop and felt something give in his back.

Employee was able to complete his shift on October 3, 2001, and several subsequent shifts, but his back complaints worsened steadily until he sought medical treatment. Diagnostic studies revealed lumbar spine abnormalities including herniations at L4-5 and L5-S1. Most treating doctors did not consider surgery a viable option for employee and recommended conservative treatment and pain management. Employee tried working various jobs through his union for a few months after the primary injury, but has not worked since January 17, 2002.

Employee suffered some additional mild injuries following the primary injury of October 3, 2001. In April 2002, employee rolled about ten feet down an embankment after his leg gave out; employee suffered an aggravation of his chronic back pain and minor abrasions to his right flank and right elbow and a contusion to his right chest wall. Also in 2002, employee was beat up by two cellmates while in jail; employee suffered multiple contusions and was kicked in the back, but contemporary diagnostic studies were negative for new structural injury to employee's low back following this incident.

Dr. P. Brent Koprivica provided an expert medical opinion for employee and opined that employee is permanently and totally disabled as a result of the October 3, 2001, injury in and of itself. Dr. Koprivica believed employee had preexisting degenerative disc disease that was asymptomatic, and that the primary injury aggravated this condition.

and resulted in employee's permanent and total disability. But Dr. Koprivica admitted on cross-examination that his opinion on causation was premised on his (incorrect) impression that employee's lumbar spine condition was asymptomatic prior to the October 2001 injury. Dr. Koprivica also acknowledged he was not provided records related to employee's preexisting left leg and right shoulder conditions and surgeries and did not have the records from Dr. Hawkins (employee's treating doctor for the back following the primary injury).

Dr. Truett Swaim provided an expert medical opinion for employee. Dr. Swaim opined that employee suffered a 40\% preexisting permanent partial disability of the left knee, a 30\% preexisting permanent partial disability of the right shoulder, and that as a result of the work injury, employee suffered a 50\% permanent partial disability of the body as a whole referable to the low back. Dr. Swaim opined that employee is permanently and totally disabled due to the effects of the work injury considered in isolation, but like Dr. Koprivica, Dr. Swaim indicated that employee denied any significant preexisting low back complaints.

Dr. Michael Carl provided an expert medical opinion for the employer. Dr. Carl diagnosed lumbar degenerative disc disease with three-level positive discogram and bilateral lumbar radiculopathy, and rated employee's low back at 15\% permanent partial disability of the body as a whole. Dr. Carl did not provide any opinion as to employee's ability to work following the primary injury.

Dr. William Reynolds provided an expert medical opinion for the employer. Dr. Reynolds found that employee's overall back condition was a combination of preexisting degenerative disc disease and aggravation from the work injury. Specifically, he testified that "it's a combination of things. It's not one thing. It's not all genetic, and it's not all work. But it's a combination of the two."

Dr. Norbert Belz provided an expert medical opinion for the employer. Dr. Belz rated employee's preexisting left leg condition at 30\% permanent partial disability and his preexisting right shoulder condition at 12.5 %, and opined that both conditions constituted hindrances and obstacles to employment. Dr. Belz assigned 20\% permanent partial disability of the body as a whole referable to the low back to employee's preexisting low back condition, with an additional 5\% resulting from the primary injury, and 10\% resulting from injuries sustained in the 2002 jail beating and fall down an embankment. Dr. Belz opined employee reached maximum medical improvement from the work injury on March 12, 2002. With regard to permanent total disability, Dr. Belz believed employee is rendered unemployable due to a combination of his preexisting, primary, and subsequent injuries, including the 2002 jail beating and fall. Dr. Belz also opined, however, that if one looks at employee's ability to function after the last injury without considering the subsequent injuries, employee may be considered permanently and totally disabled as a result of a combination of the primary injury and previous conditions.

Terry Cordray provided an expert vocational opinion for employee. Mr. Cordray opined that employee is permanently and totally disabled from any job due to his need for pain medications and the doctors limiting him to sedentary-level activity. Mr. Cordray specified that employee is permanently and totally disabled due to a combination of his

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left leg, right shoulder, and low back conditions. Mr. Cordray testified, however, that he was unaware of any significant preexisting back complaints or disability, and was further unaware of employee's subsequent low back injuries in 2002, and admitted that, given this new information, he was "stymied" and could not say whether employee was permanently and totally disabled due to the back injury alone or rather some combination of preexisting conditions, the primary injury, and subsequent injuries.

Clearly, the expert medical and vocational opinions in this matter suffer greatly from employee's failure to provide a consistent and accurate medical history, and because many of these experts were not provided a complete set of relevant medical records. Dr. Koprivica, Mr. Cordray, and, to some extent, Dr. Swaim all acknowledged that their opinions relied on the incorrect belief that employee's preexisting degenerative disc disease was asymptomatic. Faced with this record, we believe Dr. Belz provides the most reliable expert opinion evidence.

Dr. Belz's initial interview and evaluation of employee lasted in excess of four hours and, as his multiple reports reveal, his analysis was subject to numerous updates and corrections as new or more accurate information was revealed to him. In our view, Dr. Belz had the most clear picture of employee's medical history, and we have more confidence in his opinions as a result. We adopt Dr. Belz's ratings that employee suffered 30% preexisting permanent partial disability of the left leg, 12.5% of the right shoulder, and 20% of the body as a whole referable to the low back as of October 3, 2001. We find Dr. Belz's rating as to the work injury overly conservative, especially given that employee was under no work restrictions and had only sought treatment once before the work injury for low back complaints. Rather, we find the administrative law judge's finding to be a fair and reasonable measure of the permanent disability resulting from the work injury. Accordingly, we find that employee's work was a substantial factor resulting in a 35% permanent partial disability of the body as a whole referable to the low back. We find that employee reached maximum medical improvement from the work injury on March 12, 2002.

Dr. Belz believed employee is permanently and totally disabled as a result of his preexisting, primary, and subsequent injuries, but acknowledged