William Rook v. Bodine Aluminum, Inc.

at work on April 22, 2007. The issue is complicated by the fact, agreed among the various experts, that employee suffered from significant preexisting low back problems. We consider each expert's testimony below.

Dr. Volarich diagnosed the April 2007 injury as resulting in an "aggravation lumbar syndrome" including disc protrusion at L4-5 to the right and bulge at L5-S1 centrally with a new bulge at L3-4 causing lumbar bilateral lower extremity radicular symptoms. Dr. Volarich diagnosed employee's preexisting low back conditions as a central disc protrusion at L4-5 with bulging centrally at L5-S1 and chronic L5-S1 denervation. Dr. Volarich rated the April 2007 injury at 35\% permanent partial disability to the body as a whole. Dr. Volarich opined that employee is permanently and totally disabled as a result of the work injury of April 22, 2007, combined with his preexisting medical conditions.

Dr. Volarich assigned the following physical restrictions with respect to the April 2007 work injury: avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and similar tasks to an as-needed basis; no handling weights greater than 15-20 pounds; no handling weight overhead or away from the body, or over long distances or uneven terrain; avoid remaining in fixed position for more than 30 minutes at a time, including sitting and standing; change positions frequently to maximize comfort; and rest when needed, including resting in a recumbent fashion. We note that, directly contrary to what employer asserts in its brief, Dr. Volarich did, in fact, assign the foregoing restrictions specifically with respect to the April 2007 work injury considered alone:

Q. Okay. So due to the April '07 work injury alone, you would impose the same restrictions as listed on page 14 of your report?

A. Yes. That's what those are specifically for.

Transcript, page 220.

Meanwhile, Dr. Coyle diagnosed the April 2007 injury as resulting in an acute L4-5 disc herniation with right lower extremity radiculopathy. Dr. Coyle explained that pre-injury diagnostic studies revealed degenerative changes at L4-5, but an MRI obtained about two weeks after the work injury revealed a right-sided paracentric and foraminal disc herniation at L4-5 compressing both the foramen opening for the nerve and the thecal sac. Dr. Coyle believes that employee is not exaggerating his pain and that employee's complaints are consistent with what the doctor would expect from someone with employee's low back problems.

Dr. Wayne, on the other hand, ultimately diagnosed the April 2007 injury as a mere sprain or strain occurring against a backdrop of diffuse multilevel degenerative abnormalities in employee's low back. Dr. Wayne rated the April 2007 injury as resulting in a 6\% permanent partial disability of the body as a whole. As of September 12, 2007, Dr. Wayne released employee to work full duty, with no work restrictions related to the April 2007 work injury. Dr. Wayne acknowledged that employee suffers from severe low back problems, but opined that all of employee's ongoing problems are caused by the preexisting conditions of his low back, rather than the work injury.

We note that, in his earlier reports, Dr. Wayne consistently opined that employee suffered from a "superimposed" disc protrusion lateralizing to the right at the L4-5 level. Dr. Wayne's use of the word "superimposed," and his specific acknowledgment, in his report dated August 22, 2007, that the L4-5 disc pathology did not appear in diagnostic studies predating the work injury, suggest that Dr. Wayne initially agreed with Dr. Coyle that the L4-5 disc pathology was a result of the work injury. But in his June 30, 2008, report-the first of such reports addressed to employer's counsel-Dr. Wayne changed his impression of the April 2007 injury to that of a mere temporary low back sprain or strain. Dr. Wayne did mention the L4-5 disc herniation in that report, but he grouped it with a finding of "degenerative disc disease," and made no mention of the fact that this pathology did not appear on pre-injury diagnostic studies.

At his deposition, Dr. Wayne did not explain why his impression changed, nor did he even mention the disc pathology at L4-5. Instead, the doctor persisted in characterizing the work injury as a mere low back sprain. Given this chain of events, it appears that Dr. Wayne minimized or ignored the previously identified L4-5 pathology so as to tailor his impressions in favor of the employer and insurer. We find Dr. Wayne's opinions with respect to the nature and extent of the April 2007 injury to lack any credibility.

Instead, we deem most credible Dr. Coyle's opinion (and so find) that the April 2007 injury resulted in an acute disc herniation at L4-5. We find Dr. Coyle's opinion with respect to the cause of the disc herniation at L4-5 to be more credible than Dr. Volarich's opinion on the topic, as Dr. Coyle is a spine surgeon whereas Dr. Volarich does not perform surgery, and also because we believe Dr. Volarich did not provide a persuasive rationale for why his diagnosis differed. We do, however, find credible Dr. Volarich's testimony assigning permanent restrictions specifically with respect to the April 2007 injury, including the restriction that employee rest in a recumbent fashion when needed.

With respect to employee's psychiatric condition, Dr. Stillings diagnosed multiple disorders as resulting from the April 2007 injury: a mood disorder with associated 20\% permanent partial disability of the body as a whole, an anxiety disorder with associated 10 % permanent partial disability of the body as a whole, and a pain disorder with an associated 10\% permanent partial disability of the body as a whole. Dr. Stillings opined that employee is totally disabled from gainful employment; he did not specify whether he believed employee's permanent total disability to be a result of the primary injury considered in isolation, or rather a combination of the effects of the primary injury and employee's preexisting difficulties.

There is no competing psychiatric opinion in this case. We find Dr. Stillings's diagnoses and ratings to be credible with regard to the effects of the April 2007 work injury. We find that, as a result of the April 2007 work injury, employee suffers from a mood disorder, anxiety disorder, and pain disorder, which together amount to a 40 % permanent partial psychiatric disability of the body as a whole.

In addition to the expert medical testimony, employee offered his own testimony as to the effects of the work injury. We find employee's testimony credible. We find that employee suffers the following limitations as a result of the work injury. Employee can

walk about five to ten minutes at a time before he starts to experience pain. Employee has to use a motorized cart if he goes shopping, even though he finds it embarrassing. Employee can sit for about a half hour before he has to move. Employee has to lie down five or six times during the day for about a half hour to relieve his back pain. Employee wakes up about four or five times every night because of pain. On some days, employee's back pain is so bad he can't even get out of bed, and his wife has to help him get up to use the restroom. Sometimes employee's wife has to help him get dressed. Occasionally employee experiences a sudden pain in his back that is so severe that it will cause him to fall down. Employee takes Flexeril, Cyclobenzeprine, and Naproxen everyday to manage his pain, and Effexor for depression. On a scale from one to ten, employee describes his pain as an eight or nine without taking medications. With medications, as on the day of the hearing, employee described his pain as a five or six out of ten.

With regard to maximum medical improvement, it's clear from the medical records, the credible expert medical testimony, and employee's testimony that the course of conservative treatment following the work injury did little to cure or relieve employee's symptoms. Given these circumstances, we find that employee reached maximum medical improvement on September 12, 2007, the date Dr. Wayne rendered permanent partial disability findings and opined employee should be returned to work.

The parties presented conflicting expert vocational testimony on the issue whether employee is permanently and totally disabled, and if so, why. The administrative law judge found that employee is permanently and totally disabled, and no party has appealed that finding. Consequently, the focus of our inquiry is to what extent the vocational experts assign permanent total disability to the last injury in isolation, or to a combination of the effects of the last injury and employee's preexisting conditions.

Employee presents the testimony of James England, who initially opined that, assuming the restrictions from Dr. Volarich, employee's permanent total disability results from a combination of his preexisting conditions of ill and the effects of the work injury, but who conceded on cross-examination that if the work injury results in a need to lie down multiple times per day, that would be enough to render employee unable to compete in the open labor market. Mr. England explained that a need to get into a recumbent position at times because