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Mayfield v. Hannifin11/15/2005
e 3% permanent partial impairment with which you have rated him?
3. If it is not possible to apportion Mr. Mayfield's overall disability as between the 3% permanent partial impairment to his lower back, and Mr. Mayfield's other physical and medical complaints and conditions, is the 3% permanent partial impairment of Mr. Mayfield's lower back a substantial and material factor in Mr. Mayfield's overall disability?
I would appreciate it if you would answer these three questions in any medical record generated as a result of your August 2, 2002, examination of Mr. Mayfield. I certainly appreciate your time and attention to these questions.
(Emphases original.) Simultaneously, defense counsel faxed a copy of this letter to plaintiff's attorney. Following plaintiff's appointment, Dr. Bartko responded to the facsimile from defendant's counsel by faxing his office notes to both plaintiff's counsel and defendant's counsel. The office notes specifically addressed the three questions posed by defendant's counsel and stated that the three percent disability rating was assigned for plaintiff's lower back symptoms only and that plaintiff's "inability to work with the restrictions that I have put forth is solely related to his non-work-related problems."
Following the hearing on 12 August 2002 and 4 November 2002, the Deputy Commissioner granted plaintiff's motion for an independent medical examination by Dr. Mark W. Roy, a neurosurgeon. Dr. Roy examined plaintiff on 8 January 2003 and concluded that plaintiff's back strain had caused damage to the nerve running into plaintiff's left leg, which then caused plaintiff's episodic pain in that leg. Dr. Roy further concluded that plaintiff's left leg symptoms were causally related to the back strain that occurred on 11 January 2001.
The Deputy Commissioner filed an opinion and award on 26 September 2003, rejecting plaintiff's contention that Dr. Bartko's testimony was tainted by an improper ex parte communication from defendant's counsel and determining that although plaintiff's back injury of 11 January 2001 was compensable, his left lower extremity symptoms were not causally related to his January 2001 injury. The Deputy Commissioner concluded that plaintiff's compensable injury had caused total disability for only the period 19 February 2001 through 26 September 2001. Plaintiff appealed to the Full Commission. In an opinion and award filed 28 July 2004, the Full Commission modified in part and reversed in part the Deputy Commissioner's decision. The Commission first concluded that defendant's 1 August 2002 contact with Dr. Bartko was improper under Salaam and excluded Dr. Bartko's post-1 August 2002 opinions. In addressing the merits of plaintiff's claim, the Full Commission found that as a result of the compensable 11 January 2001 injury by accident, plaintiff had sustained an injury to both his back and his leg. The Commission awarded plaintiff total disability benefits from 11 January 2001 "and continuing until further order of the Commission or plaintiff returns to full time employment subject to the attorney fee awarded herein." The Commission also approved Dr. Roy as plaintiff's primary care physician. Defendant timely appealed the Full Commission's decision to this Court.
Discussion
Defendant argues three issues on appeal: (1) whether the Commission erred in excluding evidence from Dr. Bartko under Salaam, (2) whether competent evidence supports the Commission's finding that plaintiff's left leg condition and continuing disability after 26 September 2001 are causally related to plaintiff's compensable injury, and (3) whether the Commission erred in approving Dr. Roy as plaintiff's treati
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