Employee began working for employer in February 2004. In January 2005 employee began operating an edge banding machine for employer.
On February 7, 2005, employee was repetitively lifting heavy pieces of plywood and inserting them into a banding machine when he injured his lumbar spine. He was eventually diagnosed with a disc bulge at L4-5 as well as degenerative disc disease and degenerative joint disease.
On June 15, 2005, employee underwent an L5-S1 posterior laminectomy performed by Dr. Gibbs. Employee treated with Dr. Gibbs postoperatively. On December 1, 2005, Dr. Gibbs found that employee had reached maximum medical improvement and released him to work.
Employee attempted to return to work following the surgery, but was only able to work two days. Employee has not worked since this failed attempt to return to work.
Employee testified that standing for long periods of time causes pain in his low back, which requires him to sit or lay down to relieve the pain. Conversely, employee also testified that sitting for long periods of time causes pain in his low back, which requires him to stand or lay down to relieve the pain
Employee testified regarding preexisting injuries to his left knee, left shoulder, and bilateral ankles. Employee also testified that he had been diagnosed with bilateral hearing loss.
With respect to his left knee, employee indicated that he is unable to stand for long periods of time in one place and has to frequently shift weight due to left knee discomfort. Employee noted that his left knee swells and he has problems walking long distances due to knee pain. Employee's left knee also causes him problems with kneeling and going up ladders and stairs.
With respect to his left shoulder, employee noted pain, popping, and difficulty working with his arm raised overhead. He also noted problems pulling, pushing, and reaching with his left arm.
Employee testified that his bilateral ankle problems cause him pain and require him to shift his weight between his ankles when standing for long periods of time. Employee also experiences popping in both ankles and has difficulty walking long distances due to the pain.
Employee testified that the totality of his conditions make it difficult for him to perform any type of work. Employee stated that he is no longer able to shift weight from his left knee onto the right leg due to back and right leg pain. Likewise, he is unable to shift weight onto the left leg when experiencing radiating right leg pain due to his left knee problems.
Employee was seen by Dr. Volarich for purposes of an independent medical evaluation (IME). Dr. Volarich reviewed employee's medical records from the Brain and Neuro Spine Clinic of Missouri and the VA Medical Center. Dr. Volarich took employee's history and also performed a general physical examination of employee.
Dr. Volarich noted that employee suffers from low back pain radiating down his right leg greater than his left leg to knee level. He experiences sharp pains in the right heel. He has a hard time climbing stairs. He cannot stand on his tiptoes. He is only able to maintain a fixed position for about 20 minutes and can comfortably lift about 15 pounds, but not repetitively. Employee had none of these back difficulties prior to the development of his symptoms leading up to February 7, 2005, and he reported none of these symptoms to any doctors.
Dr. Volarich's IME also contains employee's detailed history regarding his preexisting conditions. Dr. Volarich also noted evidence of some of employee's preexisting conditions in his medical records review and physical examination.
Ultimately, Dr. Volarich opined that as a result of the primary injury, employee is 35\% permanently partially disabled of the body as a whole referable to the lumbosacral spine. With respect to employee's preexisting conditions, Dr. Volarich provided the following ratings: 1) 15 % permanent partial disability of the body as a whole rated at the lumbosacral spine due to the underlying degenerative disc disease and degenerative joint disease; 2) 20\% permanent partial disability of the left upper extremity rated at the shoulder; 3) 15 % permanent partial disability of the left lower extremity rated at the knee; 4) 25 % permanent partial disability of the right lower extremity rated at the ankle; and 5) 20 % permanent partial disability of the left lower extremity rated at the ankle.
Dr. Volarich opined that the combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury. However, Dr. Volarich deferred to a vocational expert as to whether employee could compete in the open labor market.
Mr. England provided the only vocational expert opinion in this case. Mr. England reviewed employee's medical records and evaluated him in person on April 16, 2007.
Mr. England noted that employee was 51 years old when he evaluated him and stated that "[s]omeone his age who moves about with obvious physical problems and who has difficulty sitting or standing long would not be a very attractive potential employee to employers hiring people for entry-level service jobs." Mr. England was asked whether or not employee would be able to compete for employment in the open labor market to which he responded, "I think that if he can't function any better than he was at the time that I saw him, then I would think from a vocational standpoint he is going to be hard-pressed to maintain himself in a work setting." Finally, Mr. England concluded that "[i]f employee is not able to tolerate a regular, 40 -hour work week without lying down then I do not believe that he will ultimately be competitively employable."