On October 28, 2008, this 55 year old claimant, a construction superintendent, suffered a disc injury in his low back while driving steel posts into the ground. Following the injury, Claimant immediately felt back and leg pain. On December 1, 2008, Claimant underwent an MRI which revealed multilevel degenerative disc disease with spondylosis, right facet hypertrophy at the L5-S1 level and moderate right-sided neural foraminal narrowing as well as posterior osteophyte at the L4-5 level impinging the exiting left L4 root.
On December 11, 2008, Dr. Bult examined the claimant and performed an ESI to the left at the L4 level. Dr. Bult followed up with the claimant and performed two more injections. On January 16, 2009, a CT myelogram revealed no instability but severe degenerative disc disease at the L5-S1 level without impingement as well as degenerative disc disease at the L4-5 level with central to left protrusion touching the left L5 nerve root in the lateral recess. On January 21, 2009, Dr. Morgan reviewed the CT myelogram and recommended surgery. On July 7, 2009, the claimant underwent a transforaminal lumbar interbody fusion on the left at the L5-S1 level. On August 24, 2009, Dr. Lennard examined the claimant and recommended physical therapy.
On October 5, 2009, a CT scan revealed soft tissue encasing and exiting L5 nerve root on the left as well as disc bulge and facet arthropathy at the L4-5 level and L5-S1 level bilaterally worse on the left with neural foraminal narrowing at the L4-5 level. Dr. Morgan placed the
Issued by DIVISION OF WORKERS' COMPENSATION
Employee: Ronald Herbert
Injury No.: 08-105523
claimant in an LSO brace. On October 26, 2009, Dr. Morgan recommended an ESI and a bone growth stimulator.
On March 9, 2010, the claimant underwent a removal of hardware and exploration of the fusion doing a laminectomy at the L5-S1 level and posterior interbody fusion bilaterally at the L5-S1 level. On April 30, 2010, the claimant underwent an anterior interbody fusion. On July 19, 2010, Dr. Lennard examined the claimant and noted improvement with therapy and the claimant's spasms were nearly gone. On August 30, 2010, Dr. Morgan allowed the claimant to return to work. On September 24 and November 8, 2010, Dr. Lennard administered an ESI to the left at the L5 level. On December 6, 2010, Dr. Morgan re-examined the claimant and noted a CT showed a solid fusion. Dr. Morgan recommended the claimant wean the narcotics. On June 6, 2011, Dr. Lennard noted that an MMPI showed an adjustment disorder with depression and found the claimant to be at MMI as of February 14, 2011.
The claimant testified to having many limitations following the 2008 back injury. The claimant testified that he cannot kneel or bend at the waist. The claimant now uses a cane to help him get around and to support his balance. The claimant testified that the third back surgery did not help and that the pain became worse.
The claimant had a pre-existing injury to his back in 1988 and underwent back surgery. The claimant testified that after his 1988 surgery, he had back pain on and off because of his job duties. The claimant testified that he was able to work without limitations. The claimant testified that prior to October 2008 he had no problems physically doing his job. The claimant testified that before the primary injury, he had no problems walking, sitting, lifting, bending, kneeling, or stooping. Before the primary injury, the claimant golfed approximately 5 days a week, coached his daughter's softball and basketball team, mowed his yard, fished, and hunted. The claimant did not have to use a cane before the primary injury.
The claimant testified that he worked 50 to 70 hours a week for this employer doing a pretty physical type job. The claimant began employment at the employer in 2006 and last worked in September 2010.
Ted A. Lennard, M.D.
Dr. Lennard opined that the claimant was at maximum medical improvement on February 14, 2011. See Dr Lennard deposition, page 10. Dr. Lennard found that the claimant had a 20% permanent partial disability related to the October 28, 2008, injury and a 5% permanent partial disability unrelated to that particular injury. See Dr Lennard deposition, page 10. Dr. Lennard found that the claimant should avoid lifting more than 25 pounds and avoid prolonged bending activities. See Dr Lennard deposition, page 10.
Dr. Lennard last examined the claimant on November 8, 2010. See Dr Lennard deposition, page 14. Dr. Lennard testified that the claimant could go back to work within the restrictions he placed. See Dr Lennard deposition, pages 21-22. Dr. Lennard testified that he could go back to work even considering the prior back surgery the claimant had in 1988. See Dr Lennard deposition, page 22. Dr. Lennard testified that as a part of his medical practice, he treats
patients with similar injuries to the claimant on a regular basis. See Dr Lennard deposition, page 22 .
David T. Volarich, D.O.
Dr. Volarich examined the claimant on October 20, 2011, and opined that the claimant sustained a 60 % permanent partial disability of the lumbosacral spine from the accident and had a pre-existing 20 % permanent partial disability to lumbar spine. See Dr Volarich deposition, page 10. Dr. Volarich also opined that the claimant is unable to engage in any substantial gainful activity and cannot be expected to perform in an ongoing working capacity in the future. Dr. Volarich found that the claimant cannot be reasonably expected to perform in an ongoing basis for 8 hours per day, 5 days per week throughout the work year. See Dr Volarich deposition, page 11. Dr. Volarich opined that based on his medical assessment alone, the claimant is permanently and totally disabled as a direct result of the work related injury of October 2008, in combination with the pre-existing low back surgical repair. See Dr Volarich deposition, page 12.
Dr. Volarich placed the following restrictions on the claimant referable to the spine after October 28, 2008: avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and other similar tasks to an as needed basis; not handle any weight greater than 20 pounds, and limit this task to an occasional basis assuming proper lifting techniques; not handle weight over his head or away from his body, nor should he carry weight over long distances or uneven terrain; avoid remaini