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Burwell v. Winn-Dixie Raleigh Inc.3/15/1994
GREENE, Judge.
Albert D. Burwell (plaintiff) appeals from Opinion and Award for the Full Commission filed 10 November 1992.
On 26 May 1987, plaintiff, a then thirty-four-year-old high school graduate, injured his back while working as the frozen foods manager at a Winn-Dixie (defendant-employer) store in Louisburg.
Plaintiff's back did not respond to treatment and on 17 July 1987, Dr. Sukri Vanichkachorn performed a bilateral laminectomy on plaintiff, for a condition which Dr. Vanichkachorn diagnosed as a herniated disk at the L4-L5 level.
On 10 September 1987, Dr. Robert Price operated on plaintiff, performing a L5-S1 partial hemilaminectomy and a secondary left L4-L5 hemilaminectomy with a diskectomy and facetectomy. In laymen's terms, Dr. Price removed a disk and a part of the hole that the nerve goes out of as it exits through the bone at the L5 level. Dr. Price performed a second operation on plaintiff, performing a complete laminectomy of L4 and L5 with a bilateral L4-L5 and L5-S1 nerve root exploration. This operation consisted of removing the posterior part of the bone that surrounds the spinal canal at the L4-L5 and the L5-S1 levels and of opening up the nerves as they went through the holes in the bone to make sure nothing was pressing on them. Dr. Price continued to treat plaintiff until April 1989. During this time period, plaintiff continued to complain of pain in the left leg, foot and back, limited mobility of his back and leg, constant pain, and stiffness of his left leg and numbness in his left foot.
Prior to his employment with defendant-employer, plaintiff had worked for five years as a route salesman, delivering vending machines and snack goods to customers. He had also worked for one year as a garbage collector for the City of Norlina earning approximately $4.00 per hour, and for one and one-half years for Faucet Enterprises in Henderson where he filled furnaces with glass for the purpose of spinning fabric for filters.
Plaintiff testified that he has been unable to return to his job with defendant-employer since the date of his injury , that he has been unable to work or earn wages in any other job since that time, and that he does not believe he can work anywhere now because he cannot sit or stand for any length of time and he has problems walking. Plaintiff also testified that he continued to experience a constant "stabbing" pain in the lower part of his back and radiating down his left leg. Plaintiff testified that the surgeries had not done much to decrease his pain and that his physical condition had remained unchanged since June of 1989.
Dr. Price testified that in his opinion plaintiff was employable with limitations, specifically, plaintiff could work in a job that did not require lifting over twenty pounds, long-term sitting, a great deal of bending, or standing in one place continuously. Dr. Price further stated that plaintiff "could be employed in any job where he was allowed to do some sitting, some standing, some walking, and didn't -- and was not required to do heavy lifting." Dr. Price rated plaintiff's disability as a 38.5% permanent partial disability.
Dr. Lee Whitehurst, who examined plaintiff on 31 August 1989, testified that based upon his examination of plaintiff, he believed plaintiff to be employable in a job that did not require prolonged bending or stooping or lifting unassisted more than thirty-five pounds. Dr. Whitehurst rated plaintiff's disability as a 15% permanent partial disability.
Mr. George Lentz, a vocational consultant, testified by deposition that he had conducted a labor market survey to determine what jobs were available within a thir
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