The parties presented evidence at a final hearing in this matter on January 14, 2011. Claimant appeared in person and through his attorneys, David Childers and Mike Lutke. Employer/insurer appeared through their attorney, Matthew Leonard.
The parties presented only two issues for determination at the hearing.
- The nature and extent of disability, with claimant alleging permanent total disability benefits. The parties agreed that should I find claimant to be permanently and totally disabled permanent total disability benefits would begin on September 9, 2004.
- That should I find that claimant was permanently and partially disabled that employer/insurer would be entitled to a credit for the overpayment of temporary total disability benefits in the amount of $\ 10,781.14 representing $171 / 7$ weeks of compensation.
The parties additionally agreed that claimant had an average weekly wage sufficient for the maximum rate of compensation which was $\ 628.90 for permanent total and temporary total disability benefits and $\ 329.42 for permanent partial disability benefits. The parties agreed that medical benefits were paid in the amount of $\ 24,534.72 and that temporary total disability benefits were paid in the amount of $\ 44,294.52 representing $703 / 7$ weeks of compensation.
Only one witness testified at the hearing - claimant, Todd Grauberger. Additionally, testifying by deposition on behalf of claimant were Dr. Shane Bennoch, Dr. Garth Russell, Dr. Dale Halfaker (a neuropsychologist), and vocational rehabilitation counselor, Phillip Eldred. Testifying on behalf of employer/insurer by deposition were Dr. Ted Lennard (two depositions), Dr. Edwin Wolfgram (a psychiatrist), and Bob Hammond, a vocational consultant. Additionally, claimant also introduced into evidence a report of Dr. Ronald Zipper, an orthopedic surgeon. The parties, through a joint exhibit, introduced into evidence claimant's medical records.
On the date of the hearing claimant was 49 years old. He was born October 17, 1961. During his working life claimant worked as a tractor/trailer driver for moving companies, moving both business and residential items. Claimant mainly operated as an owner/operator moving household items for North American Van Lines and then Atlas Van Lines. He owned his own tractor and would pull the trailer owned by the moving company with which he contracted. He would disassemble items as well as pack and load materials with helpers. He would drive the tractor/trailer to the location where the move was to be completed. With helpers he then would unload and unpack the items that had been transported and reassemble items that had to be disassembled prior to the move. He would lift items anywhere from five pounds to 500 pounds along with his helpers.
On November 19, 2001, while working for employer, claimant bent over to pad a nightstand. He felt immediate pain. He initially treated at Cox Hospital and was referred to Dr. Rethorst who then referred claimant to Dr. Charles Mace, a neurosurgeon. Dr. Mace ultimately performed surgery on claimant's back on December 28, 2001. Dr. Mace performed a right L4-5 laminectomy and microdiscectomy. Claimant had some relief from his symptoms following the surgery. He no longer had the excruciating pain that immediately followed his injury at work, but his symptoms did not completely resolve. Over time, his symptoms worsened. Following surgery, claimant returned to Dr. Rethorst. Later he was referred to Dr. Ted Lennard who treated claimant from October 29, 2002, until May 10, 2004, when Dr. Lennard released claimant. Claimant was provided with prescriptive medications and an epidural injection, neither of which relieved his symptoms. Dr. Lennard released claimant, giving him a rating of 15 percent to the body as a whole and a 50-pound lifting restriction, later changed to 40 pounds. Claimant has received no additional treatment for his injuries since his release by Dr. Lennard.
Claimant continues to have pain in his back radiating through his right leg. Claimant has difficulty sleeping because of his pain. He cannot walk more than 100 yards at a time because of the pain in his back and right leg. He has a numbing and burning sensation going down his right leg, and he limps when he walks. He will take large amounts of over-the-counter medications, including ibuprofen and Aleve in an attempt to relieve his pain. He drives no more than 35 or 40 minutes without stopping. He changes positions on a regular basis, including going to bed and sleeping two to three times a day for up to six hours. Claimant is also depressed because of his physical condition and lack of funds. He believes that there is no job he can perform. Most of the time claimant stays home and sleeps.
There is a disparity of opinion from the experts who treated and examined claimant regarding whether or not he is able to work. Claimant's physical condition as a result his injury involved the L4-5 disk space only and included treatment with a laminectomy and microdiscectomy. However, it is clear from all of the physicians who have examined claimant that he continues to have significant pain in his back, radiating into his leg.
Claimant's examining physicians have rated claimant as follows: Dr. Bennoch rated claimant's back condition as 30 percent to the body as a whole, along with a component of 15 percent to the body as a whole due to depression. Dr. Garth Russell, an orthopedic surgeon, rated claimant's disability as 20 percent to the body as a whole as a result of his back injury and 10
percent to the body as a whole for depression secondary to the injury. Both Drs. Bennoch and Russell opined that claimant was unemployable and was permanently and totally disabled. Dr. Dale Halfaker, a neuropsychologist, opined that claimant had a permanent partial disability of 14 to 24 percent with a discreet rating of 19 percent to the body as a whole for his psychological impairment which he found to be in the nature of a chronic pain disorder and an adjustment disorder (mainly depression) following his injury. Dr. Russell did not provide specific restrictions but stated that claimant would need the freedom to move about and that claimant could do no bending, lifting or twisting that would cause him discomfort. He believed that technically claimant could do light to moderate work physically but not any work based upon his level of pain. He opined that claimant would need to sit and stand as needed. He further opined that it would not be unreasonable for claimant to "recline" or get off his feet and rest. Dr. Russell found that claimant's back muscles were tight and spastic and continuously constricted. He found that this caused claimant constant pain and limited his movements and ability to function. Dr. Russell found specific objective evidence of claimant's continuing back problems including foot drop and toe or push off, along with chronic muscle spasms, nerve inj