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Shoemaker v. Creative Builders6/4/2002
PUBLISHED
Defendants appeal from an opinion and award of the Industrial Commission (Commission) ordering them to pay compensation to plaintiff for permanent total disability in the amount of $253.53 per week, plus medical expenses and reasonable attorneys' fees. They set forth six assignments of error. For the reasons herein, we affirm.
The facts are as follows: Plaintiff, Ralph Douglas Shoemaker, worked as a carpenter for defendant, Creative Builders. On 14 July 1992, he suffered a back injury that caused him to undergo surgery. Plaintiff and defendants then executed an Industrial Commission Form 21, after which plaintiff began receiving temporary total disability compensation.
As a result of the back surgery, however, plaintiff experienced encephalitis, which in turn caused him to suffer a frontal lobe syndrome coupled with an organic affective disorder. These complications led plaintiff, who was described as a caring, emotionally strong person with a good personality prior to the injury, to become flippant, emotionally labile, euphoric, easily distracted, and uninhibited. He experienced lapses in judgment, scattered thinking, and significant impairment of attention and concentration skills. Because of the organic brain injury, plaintiff now suffers from a panic disorder and depression.
Dr. William Lestini, an orthopedic surgeon, performed plaintiff's back surgery. Lestini stated that plaintiff had reached maximum medical improvement and had sustained a 45% permanent partial disability to his spine. He limited plaintiff on a permanent basis to "light duty restriction as a trim carpenter." Dr. Barrie Hurwitz, a neurologist, found evidence of focal slowing in plaintiff's brain and later determined that plaintiff had significant psychological distress and cortical dysfunction consistent with encephalitis. Dr. Patrick Logue, a psychologist, agreed that plaintiff experienced significant cognitive deficits and psychological distress as a result of the encephalitis, and referred him to psychiatry.
Plaintiff was then evaluated by three psychiatrists. Dr. Victor Morcos gave a prognosis that plaintiff would not be able to function in a normal work environment because of his distractability, emotional instability, and jocular disinhibitive behavior. Plaintiff was seen by Morcos's partner, Dr. Raouf Badawi, who determined that plaintiff had a frontal lobe syndrome coupled with an organic affective disorder, and was unable to function even in a structured environment such as Goodwill Industries. Dr. Indu Varia later diagnosed plaintiff as suffering from obsessive compulsive disorder and panic disorder. Dr. Angus McInnis, plaintiff's family physician since 1976, noticed the post-surgery personality change as well.
Plaintiff attempted to work on a part-time basis constructing homes for Alan Miller, but was disruptive on the job site and dismissed. Plaintiff then worked with a private vocational specialist retained by defendants from August 1995 through April 1996. Both alone and with the specialist, plaintiff underwent an extensive but unsuccessful job search in Rockingham County. Brenda Wrenn, who had previously employed plaintiff at her landscaping business, rehired him but found his attention span to be too short to complete necessary tasks. She also dismissed plaintiff.
By order entered 9 December 1996, Deputy Commissioner Wanda Blanche Taylor found that plaintiff had sustained a compensable injury to his back. Deputy Commissioner Taylor amended the compensation rate for plaintiff's temporary total disability, which had been wrongly calculated, and awarded plaintiff reimbursement for travel expenses incurred for participation in the
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