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Wal-Mart Stores2/26/2003
elman had reached maximum medical improvement (MMI) and gave him a permanent partial impairment rating of "12% of the body as a whole."
At Wal-Mart's request, Caselman also received an independent medical evaluation of his back injury by Dr. David Clymer. His report essentially mirrored Dr. Parkin's findings and recommendation with respect to MMI, impairment rating and restrictions-driving limited to four hours each way with a rest period, a thirty-pound weight-lifting restriction, and a twelve percent permanent impairment of the whole body. His report, however, tended to emphasize the subjective nature of Caselman's low back discomfort and leg pain, speculating it is probably related to "some ongoing nerve irritation due to fibrosis at the site of the disc and previous surgical exploration."
Dr. Keith Riggins performed an independent medical evaluation at Caselman's request. An orthopedic surgeon who retired due to his own physical disability, Dr. Riggins is a fellow of three separate academies: Orthopedic Surgeons, Disability Evaluating Physicians and Occupational and Environmental Medicine. On examining Caselman, he noted certain self-limitation or "variability" in Caselman's range of motion which he suspected was due to segmental instability in the spine. That suspicion was not born out by later x-rays. Dr. Riggins nevertheless described Caselman as
compromised in his ability to engage in activities which require:
-repetitive or persistent forward flexion of the trunk or placing the trunk in ungainly positions.
-lifting weights greater than 20 lbs. maximum.
-lifting weights greater than 10 lbs. on a frequent basis.
Weights lifted should be confined to the interval between knee and shoulder, not picked up from the floor and not placed above shoulder level.
Dr. Riggins gave Caselman an impairment rating of eleven percent "of the whole person."
Two vocational rehabilitation specialists offered their assessments of Caselman's vocational options. Dan Zumalt, selected by Wal-Mart, reported that Caselman was most highly motivated to return to his former job as a truck driver with Wal-Mart. Zumalt recognized, however, that Caselman's work restrictions likely prevented his return there. Zumalt did not believe Caselman was suited, intellectually or physically, for other types of work. So Zumalt explored thirty other truck driving opportunities in the region. He concluded that twenty-one (70%) would not accommodate the driving time and weight limitations imposed by Caselman's physicians. Based on the remaining seven companies he contacted, Zumalt estimated that Caselman could "return to the open labor market and earn $33,000 annually plus benefits (average $11.40/hr @ 50 hrs/wk)." He made no attempt, however, to secure any of those positions for Caselman.
Barbara Laughlin, a vocational rehabilitation consultant hired by Caselman, noted that Zumalt did not include Dr. Riggins' restrictions when contacting the seven trucking companies upon whose assessment of employability he relied. She made those calls and learned that none of them would accommodate Caselman's restrictions. In her view, both the salary and work-hour capacities projected by Zumalt were unrealistic. The great distance from Caselman's home to any major metropolitan area limits his access to diverse non-skilled labor positions. Lighter, sedentary work involving clerical/computer skills exceed Caselman's training and, realistically, his intellectual abilities or interest. She reported that Caselman is highly motivated to return to his job at Wal-Mart, with necessary restrictions, but her conversations with Wal-Mart officials led
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