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McCray v. Delta Industries9/21/2001
ture and multiple fractures of the right side of the face. She performed emergency surgery to remedy these fractures.
While in the hospital, plaintiff was seen by Dr. John Fambrough, an orthopedic surgeon. According to Dr. Fambrough, he was consulted and informed by Dr. Mellin that plaintiff was suffering from knee injuries. Upon Dr. Fambrough's initial examination of the knee, he noted that the knee was swollen and that there was tenderness about the knee. Dr. Fambrough noted the MRI scan of plaintiff's knee revealed a partial tear of the menisci, a bone contusion and a ligamentum strain. He treated plaintiff's knee conservatively for approximately three months. Plaintiff was prescribed physical therapy three times a week for four weeks. On September 21, 1998, plaintiff returned to Dr. Fambrough ahead of his scheduled appointment with complaints of continued pain in his right knee and that his right knee was giving way. Dr. Fambrough thought that plaintiff had developed a complete tear of the posterior horn of his lateral meniscus. He performed arthroscopic knee surgery on October 6, 1998, finding damage to the ligaments in plaintiff's knee and removing cartilage in the knee. Afterwards, plaintiff was prescribed more physical therapy.
A month later, plaintiff still complained of pain and stiffness of his knee. He informed Dr. Fambrough that he would not be able to return to work because his job of working on the cement truck required him climbing up and down the truck. Dr. Fambrough prescribed a work hardening physical therapy program for three weeks, which did not alleviate plaintiff's complaints. Thereafter, on December 2, 1998, Dr. Fambrough determined that plaintiff had reached maximum medical improvement and released him to return to work at full duty status. Based upon Dr. Fambrough's release, Delta discontinued plaintiff's benefits.
When questioned during his deposition about plaintiff's complaints of back or head injury , Dr. Fambrough initially indicated that his notes did not reflect that plaintiff complained to him of back or head injuries. However, he recalled, on cross examination, that plaintiff had complained of back injuries, though he did not examine or treat plaintiff for such injuries. Nevertheless, a physical therapy progress report dated August 28, 1998, suggested that plaintiff complained of back pain to Dr. Fambrough and that Dr. Fambrough made a notation to treat plaintiff's back and knee five times a week for two weeks. Ultimately, Dr. Fambrough based his conclusion that plaintiff had reached maximum medical improvement only on his treatment of plaintiff's knee. Dr. Fambrough testified that he would defer to a neurologist for any treatment of a head injury.
Plaintiff continued to complain of pain and did not feel that he could return to work as a cement truck driver. On January 8, 1999, one month after Delta discontinued plaintiff's benefits, Dr. Habig, an orthopedic surgeon, examined plaintiff at Delta's request. Upon physical examination of plaintiff's knee, Dr. Habig found laxity in the knee joint and muscular atrophy. This finding was contrary to that of Dr. Fambrough, who, during the last visit by plaintiff, found no laxity in the knee joint or atrophy of the muscle.
According to Dr. Habig, it was uncertain whether plaintiff could return to work as a cement truck driver. He felt it advisable to have plaintiff undergo functional capacity testing to evaluate his condition. Delta hired a functional capacity evaluator to determine whether plaintiff could in fact return to work. The evaluator stated that plaintiff's job duties were medium in physical demand, based on information supplied by Delta. The evaluator stated that plaintiff
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