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Baskin v. Waldron Nursing Center12/14/2005
NOT DESIGNATED FOR PUBLICATION
Appellant Karen Baskin sustained an admittedly compensable back injury on November 15, 2002, while employed by appellee Waldron Nursing Center. Appellees paid her temporary-total disability and medical benefits, and permanent-partial disability benefits based upon a five-percent permanent impairment to the body as a whole. However, appellees refused to pay for subsequent medical treatment and additional temporary-total disability. Following a hearing, the ALJ ruled that appellant was entitled to a change of physician to Dr. Isley and his partner, Dr. Ploetz; that appellant had proved entitlement to additional medical treatment; and that appellant did not prove entitlement to additional temporary-total disability benefits. Both parties appealed to the Commission. In its February 9, 2005 decision, the Commission affirmed in part and reversed in part, resulting in the denial of all of appellant's claims. We affirm the Commission.
In a pre-hearing order, filed September 15, 2003, the ALJ set forth the following issues as those that the parties had agreed to litigate: 1) change of physician, 2) additional related medical expenses, 3) additional temporary-total disability from June 25, 2003, to a date to be determined, 4) wage loss over the five-percent impairment, 5) attorney's fees. The pre-hearing order specifically provided that in regard to the foregoing issues, the claimant "contends that she is entitled to treatment by or at the direction of Dr. Art Isley and his associates." (Emphasis added.)
At the hearing before the ALJ, appellant testified that her injury occurred on November 15, 2002, as the result of a nursing-home resident falling on her when she and another nursing assistant were trying to put him to bed. She explained that she was sent to Dr. Olaimey, who put her on pain medication, and that she then saw Dr. Bennett, who put her on anti-inflammatory and pain medicine, and had her undergo physical therapy. She stated that she eventually had an MRI and was sent to Dr. Armstrong and to Dr. Holder. She said that Dr. Holder referred her back to her family doctor, Dr. Isley, and that she is still under Dr. Isley's care in regard to her job -related injury. She explained that Dr. Ploetz is in practice with Dr. Isley and that she sometimes sees Dr. Ploetz because Dr. Isley has had heart problems.
Appellant explained that she is still having problems with her back as a result of the November 2002 injury , that she has a knot in the lower part of her back that causes her to have severe headaches, that the pain radiates down her right leg to her foot and makes her foot draw upward, and that sometimes her leg goes numb.
Appellant stated that there has not been a time since June 25, 2003, that she has felt she could do her normal job on a regular basis. She said that there are times she cannot walk or get out of bed and that she has been under the care and treatment of Dr. Isley's office since June 25, 2003. She explained that she has not strictly complied with the restrictions that Dr. Ploetz placed on her because she is a single mother with two kids, ages 10 and 7, and that there was no way that she could lie in bed for an extended period of time.
On cross-examination, appellant stated that the results of the x-rays of her lumbar spine, which were taken at Mercy Hospital after her November 15, 2002 injury , were normal; that she was returned to work with restrictions; and that the nursing center accommodated her on those restrictions.
Appellant acknowledged having back injuries before November 2002. She stated that she recalled seeing Dr. Holder in January 2003; that in February 2003, an EMG was p
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