On December 24, 2004, employee suffered injury while working for employer when he fell on ice while walking through a truck stop parking lot. Employee suffered injuries to both shoulders as a result of the accident. Treating doctors diagnosed bilateral rotator cuff tendonitis. We must determine the nature and extent of this primary injury.
Employee presents Dr. Bennoch, who rated the primary injury at 40\% "permanent partial impairment" of each shoulder. Dr. Bennoch testified impairment is not the same as disability and that employee's true disability may be "much less" than the impairment ratings he issued. Surprisingly, the parties did not ask Dr. Bennoch to express his opinions in terms of permanent partial disability. We find Dr. Bennoch's impairment ratings to be of little help to us in analyzing this claim.
Dr. Bennoch's restrictions are also somewhat confusing. We note that, in his report of May 18, 2006, Dr. Bennoch initially assigned postural limitations secondary to employee's preexisting weight and cardiovascular conditions. Then, in his report dated May 14, 2010, Dr. Bennoch identified the same restrictions, but this time suggested they were referable to the primary injury. Finally, at his deposition, Dr. Bennoch testified that all the limitations he identified in his first report are for the primary shoulder injuries. We take it that Dr. Bennoch retracts his initial restrictions referable to preexisting conditions and ultimately believes that all of the restrictions he identified are referable to the primary injury.
Accordingly, we find that Dr. Bennoch assigned the following restrictions in reference to the primary injury: no lifting or carrying more than 10 lbs , no push/pull, no repetitive lifting, no work at or above shoulder level, no climbing, no balancing, no reaching with both arms, and no work that involves vibration, hazardous machinery, or heights.
Dr. Bennoch offered the opinion in his report dated May 14, 2010, that employee is permanently and totally disabled owing to the effects of the December 2004 work injury considered alone, if employee does not have surgery. Then, at his deposition, Dr. Bennoch opined that employee is permanently and totally disabled owing to a "collection" of his medical problems. Later, on cross-examination, Dr. Bennoch agreed that, as of his examination of employee on May 12, 2010, "[t]he shoulders-bilateral shoulders alone would have been enough, in that present state, without any further treatment, to be permanently and totally disabled." Transcript, page 394. Dr. Bennoch went on to agree that, to his knowledge, employee had not received any further treatment.
Employee testified he did not elect to undergo the surgery Dr. Bennoch referenced because he decided, based on discussions with his treating doctor, that it wouldn't help. Employee also credibly testified (and we so find) that his shoulders are worse now than before. Accordingly, we find that employee has not received any treatment that would change the impact of Dr. Bennoch's May 12, 2012, opinion that employee is permanently and totally disabled owing to the primary injury if it is considered alone.
Employee also presents Philip Eldred, who opined employee is permanently and totally disabled. Mr. Eldred explained that employee, a truck driver for almost his entire working life, has no transferable skills. Mr. Eldred backed up this assertion with an indepth explanation of his methodology. We credit Mr. Eldred on this point and find that employee has no transferable skills.
Mr. Eldred opined that employee is permanently and totally disabled because he has worked in manual labor all his life, has a GED but no formal training beyond that, and
Improvee: Donald Payne
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because of the physical restrictions imposed by the doctors. We note that Mr. Eldred did not appear to be aware that Dr. Bennoch ultimately opined that all of the restrictions he identified were referable to the primary injury alone. For example, Mr. Eldred incorrectly believed Dr. Bennoch's lifting and similar restrictions were attributable to employee's cardiovascular problems as well as the primary injury. As noted above, Dr. Bennoch did not so testify.
Mr. Eldred was asked whether he believed the work injury alone rendered employee permanently and totally disabled or whether it was a combination of employee's preexisting conditions and the effects of the primary injury. Mr. Eldred provided the conclusory response that it was a combination. Especially in light of Mr. Eldred's failure to appreciate the nature of the restrictions assigned by Dr. Bennoch, we find Mr. Eldred's opinion lacking credibility on the question whether employee is permanently and totally disabled as a result of the effects of the work injury considered alone.
The Second Injury Fund presents Mary Titterington, who opined employee is not permanently and totally disabled. Ms. Titterington believes employee has some skills that would be transferable to light or sedentary work. We have credited Mr. Eldred's testimony that employee does not have any transferrable skills. We find Ms. Titterington's contrary opinion lacking credibility, and in turn we are not persuaded by her testimony that employee is not permanently and totally disabled.
After careful consideration, we find Dr. Bennoch's opinion as stated in his May 14, 2012, report, and as conceded on cross-examination at his deposition, to be the most credible on the question whether employee is permanently and totally disabled owing to the effects of the work injury considered alone.