James Wickam v. Republic Services

as List & Clark or Liston & Clark. Employee worked for this employer until he was laid off on April 18, 2003, owing to a lack of work. Employee did not work thereafter.

On October 30, 2000, employee saw Dr. Craig Satterlee for treatment in connection with a right shoulder injury (discussed more fully below) that he suffered at work on August 17, 1999. Dr. Satterlee noted employee's complaints of numbness in the right hand and ordered an EMG to rule out a possible brachial plexus injury. On November 6, 2000, that EMG revealed moderate to severe carpal tunnel syndrome in employee's right upper extremity.

Employee's medical expert, Dr. P. Brent Koprivica, evaluated employee on November 1, 2001, for the 1999 right shoulder injury. In addition, Dr. Koprivica examined employee's bilateral upper extremities and noted the November 2000 EMG, and opined that employee was suffering from bilateral carpal tunnel syndrome, that employee's activities as a heavy equipment operator were a substantial factor in causing this condition to develop, and that employee was in need of further electrodiagnostic studies and treatment in the form of surgical decompression of both upper extremities.

On September 12, 2003, Dr. Leslie Thomas performed a right carpal tunnel release surgery. On September 24, 2003, an EMG revealed moderately severe left carpal tunnel syndrome. On December 22, 2003, Dr. Thomas performed a left carpal tunnel release surgery. On September 29, 2004, Dr. Thomas determined that employee was at maximum medical improvement, and rendered a generalized 5% residual deficit rating of each upper extremity. Employee settled his claim against employer for the primary carpal tunnel syndrome consistent with a rating of 18% permanent partial disability affecting the body as a whole.

In a report issued October 12, 2004, Dr. Koprivica reiterated his opinion that employee suffered at least moderately severe bilateral carpal tunnel syndrome as a result of his work activities performing heavy equipment operation and truck driving. Dr. Koprivica confirmed his opinion that these activities were a substantial factor in causing the bilateral carpal tunnel syndrome, which he rated at an overall 20% permanent partial disability to the body as a whole. Dr. Koprivica's rating correlates to employee's ongoing complaints of lost strength, hand cramps, and dropping objects.

Dr. Koprivica's causation opinion with regard to employee's carpal tunnel syndrome injury is not contradicted by any other expert medical opinion evidence on this record, and is not inherently incredible. Accordingly, we credit Dr. Koprivica's opinion with regard to this issue, although we deem the 18% rating reflected in employee's settlement with employer to be more appropriate. We find employee suffered an 18% permanent partial disability of the body as a whole in connection with his bilateral carpal tunnel syndrome.

Employee suffered an injury to his right shoulder at work on August 17, 1999. From August to October 1999, employee received treatment from Dr. Bruce Scully, who diagnosed bursitis of the right shoulder, restricted employee from any work over shoulder

height, prescribed medications and physical therapy, injected the right shoulder, and recommended employee perform range of motion and strengthening exercises.

Later, as noted above, employee sought additional treatment with Dr. Satterlee, who diagnosed a rotator cuff tear, recommended surgery, and ultimately performed a right total shoulder replacement on December 6, 2000. Dr. Satterlee released employee at maximum medical improvement with regard to the right shoulder on June 7, 2001, with a permanent lifting restriction of 50 pounds. Employee settled his claim against employer for the August 17, 2000, injury for 50% permanent partial disability of the right shoulder at the 232-week level. We deem the settlement to be persuasive evidence of the extent of employee's disability referable to the right shoulder. We find that employee suffered a 50% permanent partial disability of the right shoulder as of June 7, 2001.

Employee claims preexisting psychological disability. He advances the testimony of Dr. Allan Schmidt, a PhD psychologist, who believes employee suffers from a preexisting 20% permanent partial psychological disability referable to attention deficit hyperactivity disorder (impulsive type) and a personality disorder (not otherwise specified and with obsessive-compulsive features). Dr. Schmidt explained that employee talks incessantly, is unable to focus on particular topics, and would have been very limited in what he could do vocationally from a psychological perspective.

Interestingly, in his testimony, Dr. Schmidt indicated that attention deficit hyperactivity disorder is not a psychological condition at all, but more in the nature of a neurological disorder. Given this testimony, we have some doubts about relying solely on Dr. Schmidt's psychological opinion diagnosing attention deficit hyperactivity disorder. On the other hand, our review of employee's rather disorganized and discursive testimony at the hearing, as well as his similar presentation when evaluated by his vocational expert, Mary Titterington, do lend significant support to Dr. Schmidt's diagnoses, as these seem consistent with the symptoms Dr. Schmidt identified as resulting from these conditions. We note also that there is no other expert psychological opinion evidence on record to rebut Dr. Schmidt's findings and opinions. Given these circumstances, we deem appropriate the administrative law judge's finding that employee suffered a preexisting psychological disability of 10% of the body as a whole. Because Dr. Schmidt credibly testified that employee's psychological diagnoses would have been present from birth or early childhood, we find that employee was suffering from this disability at the time of the primary injury.

Employee claims preexisting disability referable to sleep apnea. On April 5, 1999, employee saw Dr. Raghavendra Adiga for complaints of excessive fatigue and weight gain. Dr. Adiga suspected employee was suffering from sleep apnea and ordered a sleep study and additional tests to rule out diabetes and hypothyroidism. Employee apparently underwent the sleep study, but did not immediately follow-up for additional treatment.

Employee testified that his sleep apnea was bothering him at work by April 2003, and that he dealt with his severe fatigue by sleeping during his lunch breaks and by stopping on his commute to take naps. On May 1, 2003, employee saw Dr. Lisa Mansur for complaints of severe sleepiness. Dr. Mansur recommended employee lose weight and undergo another sleep study. On May 13, 2003, employee underwent a polysomnography which revealed

extremely severe obstructive sleep apnea not adequately treated by CPAP or BiPAP. Based on the severity of employee's sleep apnea as demonstrated by the study, Dr. Mansur recommended the extraordinary step of a tracheotomy. Dr. Sidney Christiansen performed that procedure on June 3, 2003. On January 5, 2004, employee underwent a stoma revision for excessive granulation tissue that was preventing employee from breathing whenever the tracheostomy tube was removed.

Employee believes no employer would hire him to perform his previous work on construction sites, owing to the risk that dust and debris would enter his tracheostomy tube. Employee hopes to eventually lose enough weight so that his sleep apnea will improve sufficiently that the tracheostomy tube may eventually be removed. We find that employee's sleep apnea was disabling as of April 2003.

Employee claims preexisting disability referable to his bilateral knees. Employee provided some generalized testimony suggesting he suffered knee problems for 20 or 30 years. He also testified that at a certain point he had to use a milk crate to climb up into his machine at work, and that he felt he had to hide this circumstance from his employers, as they would have frowned upon it. However, employee did not specify when this (or any other particular impairment referable to the knees) began.

The medical records suggest employee first sought treatment for this condition on July 21, 2003, when he saw Dr. Leslie Thomas complaining of aches and pains in his knees. Dr. Thomas determined that an x-ray showed mild degenerative changes, and ordered an MRI to rule out a meniscal tear. On July 29, 2003, Dr. Thomas reviewed the MRI results and opined that they revealed a meniscal tear in employee's right knee. Dr. Thomas recommended arthroscopic surgery to correct this condition, and performed that surgery on August 13, 2003.

On January 19, 2004, Dr. Thomas identified retropatellar crepitus and a torn medial meniscus in employee's left knee, and recommended a left knee arthroscopy. Employee underwent a left knee arthroscopy with medial meniscectomy and debridement performed by Dr. Thomas on February 5, 2004. Given employee's failure, in his testimony, to identify when his knees first started causing specific impairments in his activities, we find insufficient evidence to support a finding of disability referable to employee's bilateral knees prior to July 2003, when employee first sought treat