Donald Elliott v. Don and Freeman Elliott d/b/a AAA Stone

As much as 100 pounds, the use of tools, working on one's feet most of the day, and occasional bending and stooping.

In the 1990s, employee suffered a low back injury while working for a cheese company. Treating physicians diagnosed a herniated L5-S1 disc and employee underwent a decompressive laminectomy and discectomy by Dr. Arnold Schoolman on October 17, 1996. Employee initially had a good result from the surgery and was able to return to work running his stonemasonry company.

The record does not contain postoperative records from Dr. Schoolman assigning any work restrictions; employee testified he did not believe he had any restrictions from Dr. Schoolman following the October 1996 surgery. However, a few years after the surgery, employee began to suffer renewed pain in his low back. Employee reported chronic low back pain to his personal physician, Dr. Brad Townsend, on September 18, 2000. On March 31, 2003, Dr. Townsend prescribed Lorcet, an opioid analgesic, for a diagnosis of chronic low back pain.

On August 26, 2003, employee suffered another low back injury. Employee was working with one foot in the bed of his pickup truck and the other on the tailgate. The tailgate cables broke, causing employee to drop suddenly. Employee returned to Dr. Townsend with worsened low back symptoms following this incident.

As of March 15, 2004, Dr. Townsend continued to prescribe Lorcet for chronic low back pain; he noted the medicine provided "moderate relief, if [the] pain isn't too severe." Transcript, page 290. By January 4, 2005, employee complained to Dr. Townsend of progressively worsening low back pain. Dr. Townsend switched employee's pain medications from Lorcet to Vicodin, and ordered an MRI which revealed an annular tear at L4-5, significant disc space narrowing at L5-S1, and bilateral neural foraminal stenosis at L5-S1. Dr. Townsend referred employee to a pain specialist after employee reported the Vicodin was not effective in managing his low back pain.

On February 24, 2005, employee saw Dr. David Breyer, a pain management specialist who diagnosed low back pain with left lower extremity radiculopathy, prescribed a Medrol Dosepak, Elavil, and a TENS unit, and later administered a series of three epidural steroid injections. On May 25, 2005, employee reported to Dr. Townsend that the treatment with Dr. Breyer wasn't helping, so Dr. Townsend discussed with employee the possibility of obtaining a surgical consultation.

Throughout his treatment with Drs. Breyer and Townsend, employee continued to operate his stonemasonry company on a full-time basis, and it does not appear that the treating physicians medically restricted his ability to do so. However, employee credibly testified (and we so find) that after the 2003 back injury, it was very painful to perform his work, and that he changed the way he worked. For example, employee stopped going up on scaffolds, and sought help moving any stones over 50 or 60 pounds. The narcotic pain medication employee took to manage his pain also made him sluggish and tired, and affected his ability to drive for his business.

Employee's medical expert, Dr. P. Brent Koprivica, believes that employee suffered a permanent aggravating injury to the lumbar spine on August 26, 2003, and rated employee's overall preexisting low back condition as constituting a 25\% permanent partial disability of the body as a whole at the time employee sustained the primary injury on July 13, 2005. Dr. Koprivica issued this rating and testified that employee's preexisting disability constituted a hindrance or obstacle to employment, despite acknowledging that employee was working full-time running his stonemasonry business without any medical restriction on his activities. Dr. Koprivica explained that employee was working for himself, so he was able to regulate his own activity level, and also was able to take narcotic pain medications regularly while on the job. Dr. Koprivica noted that any other employer would likely have serious reservations about employee's use of such medications in the workplace.

After careful consideration, we are persuaded by Dr. Koprivica's opinion with regard to preexisting disability. The record reveals employee's preexisting low back pain was not adequately controlled even with narcotic medications, and there was an outstanding suggestion from Dr. Townsend that employee would obtain a surgical consultation. We are not persuaded that employee's ability to stoically continue working despite his welldocumented severe low back pain compels a finding that employee suffered no preexisting disability referable to his low back condition. We find that employee suffered a preexisting permanent partial disability referable to the low back as of July 13, 2005.

On July 13, 2005, employee was at a scrap yard unloading a box of copper wire that his workers had salvaged while on the job. It was employee's practice to take salvaged copper to the scrap yard and use the proceeds to buy beer and barbeque to reward his workers upon completion of a job. Employee did this about once a month.

On this date, employee was standing on the tailgate of his truck when the tailgate cables broke, causing employee to fall into a dumpster, striking his head and back. Employee suffered a brief period of unconsciousness, then someone came and helped employee out of the dumpster. Following this incident, employee suffered a worsening of his low back pain. On July 18, 2005, he returned to Dr. Townsend, who prescribed additional Lorcet, and later, duragesic patches.

These treatments were unsuccessful in managing employee's low back pain, so employee saw an orthopedic surgeon, Dr. Glenn Amundson, who ordered an MRI and diagnosed discogenic pain. Dr. Amundson recommended and ultimately performed a bi-level lumbar fusion surgery on January 31, 2008. This surgery was also ineffective at relieving employee's low back pain, and employee was unable to return to work. Employee continued to take daily narcotic pain medications prescribed by Dr. Townsend. On November 13, 2008, Dr. Martin Thai, a pain management specialist, diagnosed failed back syndrome, and agreed that opioid medications were necessary for pain control.

Dr. Koprivica opined that the injury of July 13, 2005, was a substantial factor in causing employee to suffer further lumbar disc injury in the form of new discogenic pain resulting in a need for the bi-level fusion surgery. Dr. Koprivica rated the July 13, 2005, injury as resulting in a 35 % permanent partial disability of the body as a whole. We find Dr. Koprivica's opinions with regard to the primary injury to be persuasive, and find that

the July 2005 injury resulted in new discogenic pain and associated 35\% permanent partial disability of the body as a whole referable to the lumbar spine.

Employee completed the $11^{\text {th }}$ grade, but did not graduate from high school or obtain his GED. Employee was 55 years of age on the stipulated date of maximum medical improvement, August 9, 2008. As noted above, all of employee's work history involved manual labor, stonemasonry, or running his own stonemasonry business.

Presently, employee suffers from sharp pain in his low back that runs down the back of his left leg. He takes four to six doses of oxycodone per day to manage these symptoms, and also uses a duragesic pain patch. Employee is unable to endure prolonged sitting, standing, or walking. Employee spends an hour or two per day lying down.

Employee tries to stay busy performing an occasional "junking" activity with his father loading up old, unwanted cars and removing any parts of value. This activity doesn't require any heavy lifting, but occasionally involves some awkward postures while removing a difficult-to-reach part. When he has a junk car, employee will typically spend a couple hours working on it per day. Employee also uses a riding mower to mow about a quarter or half acre of his property, and continues his hobby of fishing once or twice per week, and hunting deer, squirrels, and rabbits.

Dr. Koprivica assigned numerous restrictions for what he described as "the synergism of combining" the disabilities referable to employee's preexisting lumbar disability and the disability employee suffered as a result of the 2005 primary injury. Transcript, page 149. Dr. Koprivica's restrictions include the following: no prolonged sitting over 1 hour; no standing/walking intervals over 30 minutes; employee should have the ad lib ability to change positions when needed; no lifting from the floor, and only occasional lifting/carrying of less than 20 pounds; no frequent or constant bending at the waist, pushing or pulling, twisting, lifting, or carrying; avoid full body vibration and jarring; avoid frequent or constant squatting, crawling, or kneeling; and avoid climbing. Dr. Koprivica testified that the combination of employee's preexisting lumbar industrial disability with the further lumbar disability attributable to the July 13, 2005, injury results in permanent total disability. Employee also presented expert vocat