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Henson v. Terminex/Service Master2/21/2003
ent impairment as a result of the more recent injury nor greater disability than that which he had from his prior injury." As such, the ALJ was not required to make a determination of whether the disability was partial or total.
Henson's final argument is that the 1984 decision is based upon the old definition of occupational disability and not the current definitions. Henson again seems to be attacking the probative value of Dr. Sheridan's opinion, specifically asking ". . . where does he state in his opinion that any specific active impairment rating exists?" Henson quotes Dr. Sheridan's opinion several times in his brief, claiming that Dr. Sheridan states that it is "impossible for him to extrapolate what active impairment existed." We believe that Henson has misquoted and misconstrued Dr. Sheridan's testimony. We have conducted a careful review of Dr. Sheridan's report, which clearly states that, based on his examination and thorough review of the records, in his opinion, the most pre-existing active impairment Henson could have had from the previous injury was an 8% whole-man impairment. Dr. Sheridan then concludes that Henson's "current physical condition is not medically causally related to his alleged 2/19/01 workplace injury, because I believe that diagnosis, which is an acute lumbar strain, has resolved. I think his current physical conditions are a result of a pre-existing impairment, which resulted from his 1984 and 1988 back injuries." Consulting the guidelines, Dr. Sheridan unequivocally allocated a 0%, DRE I for the current injury and placed no restrictions on Henson's functional ability. He also concluded that Henson is "physically capable of returning to the type of employment he was engaged in at the time of his alleged injury." While Henson continues to argue that his medical experts' opinions were uncontroverted, the ALJ determined that Dr. Sheridan performed the most thorough evaluation, and therefore, found his opinion the most believable. It can hardly be said then, that the other doctor's opinions were uncontroverted.
Henson also claims that the ALJ completely ignored the opinion of Dr. George E. Parsons, a vocational expert. First, we note that "uncontradicted opinions by vocational experts is not such evidence as compels any specific findings by the ALJ." Eaton Axle at 337. Second, our review establishes, as stated previously, that the ALJ considered all the evidence but simply found Dr. Sheridan's opinion the most convincing. The Opinion and Award clearly establishes that the ALJ considered Dr. Parson's opinion but was not convinced by it.
Having determined that the Board has not overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice, we affirm the opinion of the Board.
ALL CONCUR.
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