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Mayfield v. Hannifin11/15/2005
tiff to sedentary or light duty, with no lifting of more than 15 pounds occasionally and no repetitive bending, twisting, or squatting.
During plaintiff's next three follow-up visits with Dr. Bartko in July and August, plaintiff's leg symptoms showed little to no improvement. On 25 September 2001, plaintiff was terminated from work due to his unavailability for six consecutive months. At that time, plaintiff remained on work restrictions and had not commenced any light duty or rehabilitative employment.
On 26 September 2001, plaintiff reported to Dr. Bartko that his back pain had returned three weeks earlier. Dr. Bartko noted that plaintiff had exhausted conservative treatment options with respect to his back and that plaintiff was not a good surgical candidate. He, therefore, decided that plaintiff had reached maximum medical improvement, assigned a three percent permanent partial disability rating to plaintiff's back, and released plaintiff from his care. He stated in his medical note that he felt plaintiff's leg problems were not causally related to plaintiff's lower back condition and, therefore, not work related. Regarding a return to work, Dr. Bartko expressed the view that if the back symptoms were plaintiff's only problem, he would be capable of returning to sedentary or light duty work withrestrictions that took his back condition into account. Given, however, the nature and severity of plaintiff's leg symptoms, Dr. Bartko was doubtful whether plaintiff could realistically even do sedentary to light work.
On 7 November 2001, defendant filed a Form 60, in which defendant admitted plaintiff's right to compensation for a "back strain." The Form 60 confirmed that plaintiff was receiving temporary total disability compensation at a rate of $344.00 per week. On 11 February 2002, plaintiff filed a Form 33 requesting a hearing " o determine compensability and benefits due plaintiff." The case was scheduled for a hearing before Deputy Commissioner Bradley W. Houser on 12 August 2002.
In preparation for the hearing, defendant sent plaintiff a letter on 31 July 2002, informing plaintiff that he was scheduled for a return appointment with Dr. Bartko on 2 August 2002. At 6:38 p.m. on the following day, 1 August 2002, defendant's counsel faxed a letter to Dr. Bartko's office. A note on the facsimile cover sheet said, "Please see that Dr. Bartko receives these documents before Mr. Mayfield's 8/2/02 2:15 p.m. appt. Thanks." (Emphasis original.) The faxed letter stated in pertinent part:
My clients, who are Defendants in the above-captioned workers' compensation claim, have scheduled Mr. Mayfield's August 2, 2002, appointment with you in order to try and answer the following specific questions.
1. First, as of Mr. Mayfield's August 2, 2002, appointment with you, should Mr. Mayfield be under any work restrictions strictly pertaining to his back and resulting from his lower back injury of01/11/01, considering the fact that he has not worked or presumably undertaken any other strenuous physical tasks since you released him at maximum medical improvement on September 26, 2001?
2. Is it possible to apportion Mr. Mayfield's overall disability (that is, the sum of all of the factors medically and physically preventing Mr. Mayfield from returning to work as of August 2, 2002) as between the impairment to Mr. Mayfield's lower back resulting from his 01/11/01 back injury and his multiple other complaints and conditions, including his left leg complaints, residual stroke symptoms, heart condition, and other physical conditions? In other words, can you say what percentage of Mr. Mayfield's inability to return to work is directly attributable to th
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