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BERRY v. BOEING MILITARY AIRPLANES12/9/1994
This is a workers compensation action in which claimant, Bobby G. Berry, appeals from the factual findings of the Workers Compensation Board of Review (Board) as to his date of injury and extent of disability. Respondent Boeing Military Airplanes, insurance carrier Aetna Casualty & Surety Company, and the Workers Compensation Fund previously stipulated to the apportionment of liability among them. Consequently, there are no related issues except for claimant's appeal. We affirm in part, reverse in part, and remand for further proceedings.
The essential facts are as follows:
According to the findings of the Administrative Law Judge (ALJ), adopted by the Board, on May 12, 1987, claimant injured his left ring finger while working for respondent. Claimant was a sheet metal worker , and the injury occurred while he was using a rivet gun. As the pain in his finger did not subside, claimant visited respondent's medical center on May 15, 1987. On May 19, 1987, claimant filed a disability benefit claim form, claiming work-related problems with his left fingers and hand.
On June 2, 1987, claimant saw Dr. Lucas, a board certified orthopedic surgeon. Dr. Lucas diagnosed claimant as having carpal tunnel syndrome in his left wrist. As this prevented claimant from painlessly performing sheet metal work, claimant was transferred to the panel shop. This job , however, exceeded claimant's weight restrictions and aggravated his condition. Claimant was then asked to transfer to a department where he would work with small parts — a position more accommodating to his injury. However, this new position paid 10% less than claimant's previous job. Claimant agreed to take the new job, in spite of the reduced pay, until he learned that he would also be required to work a great deal of overtime. Unwilling to work the increased hours, claimant was fired.
On September 30, 1987, Dr. Lucas performed surgery on claimant's left wrist. Although surgery alleviated the pain in his left hand, claimant soon began developing symptoms in his right hand. The same operation was performed on November 20, 1987, on claimant's right wrist. On July 11, 1988, claimant filed a claim with the Division of Workers Compensation . On May 26, 1990, claimant saw Dr. Artz and reported that the surgery performed by Dr. Lucas only minimally improved his condition. Claimant was given cortisone injections, which temporarily alleviated his pain; however, he eventually had to have surgery on both hands in February and March of 1992.
On July 30, 1993, claimant submitted his case to the ALJ. The ALJ determined the date of claimant's bilateral carpal tunnel syndrome to be August 27, 1987, as that was the last day claimant worked for respondent. Accordingly, the ALJ applied the law in
effect on that date. The ALJ found that claimant had introduced no evidence concerning his inability to perform work in the open labor market, nor did he introduce evidence regarding his inability to earn comparable wages. The ALJ concluded claimant was not entitled to work disability and limited claimant's disability rating to a functional impairment of 5% in each arm, for a general impairment of 10%.
Claimant applied for review by the Board. The Board found that the date of claimant's work accident was the last day claimant worked. The Board, however, disagreed with the ALJ that claimant had a 10% functional impairment, as this impairment rating was based upon the testimony of Dr. Artz, who did not see claimant until long after he was terminated by respondent. Nonetheless, the Board affirmed the award. The Board found there was sufficient evidence offered to show that claimant's abil
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