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City of Henderson Fire Department v. Stone5/30/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
The city of Henderson Fire Department appeals from a decision of the Workers' Compensation Board that affirmed an opinion of an administrative law judge. The ALJ awarded permanent partial disability benefits to Nathan E. Stone for a low-back injury , but refused to carve out a portion of Stone's disability as pre-existing active impairment. We affirm.
Stone is employed as a firefighter for the Henderson Fire Department. On October 28, 2001, Stone injured his lower back while lifting a corpse onto a backboard. During this event, Stone felt a twinge in his back and, by the time his shift ended the next morning, he could barely walk. Stone also felt severe back pain that radiated into his left leg. Stone underwent surgery after an MRI revealed a large, herniated disc. After surgery, Stone returned to work with no restrictions.
The major issue litigated by the parties herein was whether Stone possessed a pre-existing active impairment. The Henderson Fire Department submitted evidence that Stone had back problems prior to the October 28, 2001 incident. First, Stone's supervisor, Lt. Jeffery Strader, testified that he worked with Stone on the day of the alleged injury . Lt. Strader indicated that Stone appeared to be fine during the shift, but Stone did mention that his back hurt. Lt. Strader also testified that, prior to October 28, 2001, Stone regularly complained of back pain. Further, Lt. Strader noted that Stone failed to mention that he felt the twinge in his back after lifting the corpse. Lt. Strader did not know of Stone's injury until the next day.
The employer also relied on the medical report of Dr. Bart Goldman. In his medical records, Dr. Goldman noted that Stone reported stiffness in his lower back one year prior to the lifting incident. Dr. Goldman also indicated that the stiffness was treated and appeared to have subsided until October 28, 2001. With the surgery, Dr. Goldman believed that Stone had a lumbar DRE Category 3 impairment with objective signs of radiculopathy. Dr. Goldman assigned a 10% whole person impairment, but noted that Stone would have received a 5% whole person impairment based on non-verifiable radicular complaints had he been evaluated then. Thus, Stone's impairment rating for the October 28, 2001 injury was actually 5%.
Dr. Bryant Bloss also treated Stone for lower back pain in December 2000. Dr. Bloss diagnosed lumbar facet syndrome and degenerative disc disease and interpreted x-rays as showing minor spondylosis present at the L4/L5 and LD/S1 levels, with most of the charges being at L4/L5. Dr. Bloss' medical records indicate periods of improvement and exacerbation of Stone's condition during his treatment. Dr. Bloss treated Stone 28 times, but Stone complained of pain radiation in the lower extremities only five times. Two notes in January 2001 refer to lower back pain radiating in both posterior thighs, and notes from February 2001 indicate pain in the left hamstring area.
The final six entries do not mention any radicular complaints.
During his testimony, Stone acknowledged having lower back problems from December 2000 to March 2001. Stone denied missing work during this period because of these back problems. In fact, on October 27, 2001, Stone lifted a five-year old and a seven-year old at the same time with no problem.
Dr. Harold C. Cannon was Stone's treating physician for this injury. Dr. Cannon's medical records noted that Stone complained of severe left leg pain that began after lifting a patient onto a gurney. Dr. Cannon diagnosed Stone with left L5/S1 herniation and recommended surgery, which was successfully perfo
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