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Aero Energy Inc. v. Johnson12/16/2004
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COUR T OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Workers' Compensation Board (Board) and the Court of Appeals have affirmed a finding that the claimant is totally disabled as a result of a work-related back injury . They have also found no error in the Administrative Law Judge's (ALJ's) reliance on an impairment assigned by Dr. Templin or the ALJ's refusal to exclude compensation for the impairment Dr. Templin assigned for carpal tunnel syndrome. We affirm.
The claimant was born in 1947, had a high school education, and was certified as a mine foreman and electrician. He had worked in the mining industry since 1966. He sustained a ruptured biceps tendon in his right arm in 1994, and received a 10% occupational disability. On June 21, 2000, he was informed that he suffered from carpal tunnel syndrome in his right hand and wrist. He moved to reopen the right arm and shoulder claim on December 1, 2000, alleging that he had developed carpal tunnel syndrome and that his occupational disability had increased since the award. The motion was denied on January 27, 2001, with the ALJ noting that carpal tunnel syndrome is rarely caused by a single incident of trauma and that the evidence did not establish a connection between the condition and the 1994 injury .
The claimant sustained a number of other injuries after he learned that he suffered from carpal tunnel syndrome. On July 10, 2000, he bumped his right knee against a conveyor belt. On August 22, 2001, he slipped and fell, injuring his back. He last worked on August 27, 2001, and on September 24, 2001, he was diagnosed with carpal tunnel syndrome in his left hand and wrist. On June 20, 2002, the claimant filed an application for benefits, alleging bilateral carpal tunnel syndrome as well as the other injuries. He also filed an application alleging a hearing loss due to his cumulative exposure to loud noises while working. The applications were considered together.
Sometime after the claimant's August 22, 2001, back injury , he was referred to Dr. Mirani, a specialist in rehabilitation medicine. Dr. Mirani diagnosed mechanical low back pain, with lumbar spinal stenosis and evidence of lumbar spinal stenosis, and chronic lumbar polyradiculopathy that was confirmed by EMG. He assigned an 8% impairment to the claimant's injury.
Dr. Wagner, an orthopedic surgeon, evaluated the claimant on September 9, 2002. He recorded a history of back problems that began in the claimant's early 30's as well as the August 22, 2001, injury and subsequent treatment. Dr. Wagner diagnosed complaints of the lower back, noting that a neurological evaluation was normal. He thought that the problems revealed on recent diagnostic testing were chronic. In his opinion, the claimant's primary problem was chronic, ongoing degenerative changes in the lumbar spine that were evident before August, 2001, and accounted for a 5% AMA impairment.
Dr. Templin completed a Form 107, which indicated that he evaluated the claimant both before and after the back injury, on April 11, 2001, and again on September 12, 2002. In 2001, Dr. Templin testified on the claimant's behalf in the reopening proceeding regarding the 1994 right arm injury. At that time, he diagnosed chronic low back pain and a history of lumbar disc bulges, but he assigned no impairment or restrictions based on the claimant's back condition. He did assign an AMA impairment for
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