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Eller v. County of Pittsburg3/4/2003
n." The expert noted the claimant's disfigurement at the bone donor site, and concluded that the claimant is "100% permanently totally disabled and economically unemployable until as a direct result of a combination of his injuries." The trial court overruled the employer's probative value objection to the report.
The employer presented the narrative report of its medical expert who concluded that the claimant had sustained work-related injuries resulting in permanent partial impairment to the whole body consisting of 16 percent to the cervical spine and 0 percent to the lumbosacral spine, left shoulder, left arm, right or left hip, or right or left leg as a result of his work-related accident. He noted that the claimant had undergone a "lumbar spine diskogram" but did not assign any impairment as a result of the procedure. He stated that the claimant's temporary disability had ended, he did not need further medical care or continuing medical maintenance, and he may return to work.
In an order filed June 24, 2002, the trial court awarded the claimant permanent partial disability benefits for compensable injuries to his neck, and back. The trial court found:
claimant sustained 21 percent permanent partial disability to the neck (over and above a pre-existing 18% permanent partial disability to the neck due to 1992 cervical fusion) and 5 percent permanent partial disability to the back (over and above a pre-existing 15% permanent partial disability to the back due to surgery in 1993), which is 26% to the body as a whole, for which claimant is entitled to compensation . . . . (Emphasis added.)
The court denied the claims for injuries to the left shoulder and left hip, and for continuing medical maintenance. The court granted the employer's claim for overpayment of temporary total disability benefits. The claimant seeks our review.
II.
The claimant contends the trial court erred as a matter of law in relying upon evidence submitted by the employer. The argument is that the opinion of the employer's expert failed to comply with mandatory provisions of the AMA Guides. We disagree.
Title 85 O.S. 2001 ยง 3(16), states, in relevant part, that "any examining physician shall only evaluate impairment in accordance with the latest publication of the American Medical Association's 'Guides to the Evaluation of Permanent Impairment' in effect at the time of the injury." The fourth edition of the Guides was in effect when the claimant sustained his work-related injury. Table 75 provides the estimated diagnosis-related impairment percentages to be combined with the impaired range of motion and neurological deficit in evaluating a claimant. Table 75 (II)(D) establishes an 8 percent whole body impairment for " urgically treated disk lesion without residual signs or symptoms; includes disk injection." (Emphasis added.) The claimant argues that because it is undisputed that he underwent a procedure where dye was injected into his lumbar spine, the court erred in relying upon the report of the employer's expert who noted the procedure but did not assign a corresponding impairment rating. As a result, he argues he is entitled to an additional 8 percent impairment above the 5 percent he was awarded for injury to his back.
The employer, on the other hand, argues that the procedure performed on the claimant's lumbar spine was not a surgical treatment of the claimant's spine, as required by Table 75(II)(D), but was a diagnostic test performed to determine whether the claimant was a candidate for surgical treatment. We agree with the employer.
The four-level lumbar diskogram was performed by a radiologist associ
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