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Bayless v. Industrial Commission12/23/1993
CONTRERAS, Judge
This is a review of an Arizona Industrial Commission award and decision upon review reopening a 1986 back injury claim based upon findings that subjective complaints had worsened, were related to the industrial injury, and required active care. The issues presented are (1) whether a previous award terminating the 1986 claim and a related 1984 back injury claim without permanent impairment precluded reopening; and (2) whether sufficient evidence supports reopening. We conclude that reopening is not precluded and that sufficient evidence supports reopening. Accordingly, the award is affirmed.
FACTUAL AND PROCEDURAL HISTORY
On November 17, 1984, respondent employee ("claimant"), a butcher, injured his lower back while lifting turkeys at work. After this injury , he complained of lower back and radiating left leg pain. A December 1984 CT scan revealed a central and left-sided disc bulge at L5-S1 with a partial compromise of the neural foramen. After several months of conservative care, claimant's family physician, William H. Devine, D. O., released him to regular work.
Despite ongoing symptoms, claimant returned to work for petitioner employer. On April 12, 1986, he again injured his lower back when he fell at work. Although the 1984 injury claim remained open, petitioner carrier ("Argonaut") paid all benefits under the second injury claim.
After the second injury , claimant complained of increased back and bilateral leg pain and never returned to work. A January 1987 myelogram and CT scan again revealed a central and left-sided disc bulge at L5-S1, which according to the radiologist "effaced the thecal sac in the origin of the S1 rootlets, probably with no significant compromise."
In April 1987, Argonaut referred claimant to the Southwest Disability Evaluation Center for a group independent medical examination. The group, which included neurosurgeon Volker K. H. Sonntag, M.D., commented that the 1987 CT scan revealed a disc bulge that "did not seem to be remarkable and it was felt not to be of any significance." During the physical examination, claimant walked stiffly and slightly bent over with a waddling gait, and his range of motion was severely restricted. The consultants concluded that claimant was stationary without objective evidence of permanent impairment and that he could return to regular work.
Relying on this report, Argonaut terminated both the 1984 and the 1986 injury claims. Claimant requested a hearing. Pending the hearing, he saw, among others, orthopedic surgeon Stuart B. Phillips, M.D., and Dr. Sonntag reexamined him. Argonaut also placed claimant under surveillance and filmed him, among other things, bending, walking rapidly, running, and using his entire body to pull-start a boat motor, all without any apparent restriction.
At the ensuing hearings, the medical experts included Drs. Devine, Phillips, and Sonntag. Dr. Devine diagnosed a true radiculopathy related to the L5-S1 disc bulge. In his opinion, this condition was progressing toward surgery. Although Dr. Devine had not seen the surveillance films, he testified that "if someone suggested the man's malingering, it's because they didn't know him before and I want to tell you it's absolutely wrong and preposterous."
Dr. Phillips interpreted the 1984 CT scan to show that the disc bulge compromised the S1 nerve root, and he also diagnosed radiculopathy on this basis. He, however, conceded that his clinical findings were contradictory and that the surveillance films were inconsistent with claimant's altered gait and restricted motion during examination. He also agreed that the disc bulge could be a degenerative c
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