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State ex rel American National Red Cross v. Smith10/25/2005
n the classifications of the functional capacity evaluation, he would not even be able to function with in a sedentary classification.
{ } 4. Claimant was examined by John G. Nemunaitis, M.D., on behalf of the commission. After providing all of his physical objective findings, Dr. Nemunaitis stated as follows:
The claimant does have residual biomechanical problems that relate to his lumbar spine but there were no objective findings to verify a radiculopathy as relates to the lumbar spine. He however, does have residual radiculopathy in both upper extremities primarily at C6-7-8 that do impair fine motor coordination and hand functioning. He also has problems with shoulder range of motion in part related to stiffness and, to a lesser extent, motor weakness. Although the claimant is not paraplegic and has minimal motor weakness in his lower extremities, he does have significant impairment in safety risk involved with ambulation because of his spasticity. His examination verified hyperactive reflexes in all four extremities and also a positive Babinski in the left lower extremity. He has a verified spinal cord injury and his reflexes reflect that. The claimant denies bowel and bladder dysfunction. The claimant is MMI. Although he does not have significant upper extremity weakness, he does have a residual radiculopathy associated with his cervical injury and surgeries. The claimant is not paraplegic nor can he be described as having severe long tract impairments however, he does have objective verification of spinal cord injury and residual spasticity in all four extremities which do increase his risk of falling, balance and mobility capabilities. It also has affected his upper extremity functioning both distal and proximal. * * * Dr. Nemunaitis found that claimant had reached maximum medical improvement ("MMI"), assessed a 38 percent whole person impairment which included 35 percent impairment for claimant's allowed cervical conditions and a five percent impairment for his allowed contusion of back. Dr. Nemunaitis also opined that claimant was not capable of physical work activity.
{ } 5. Claimant was also examined by Jack G. Jones, M.D., in July 2003. Dr. Jones' original report, if one exists, has not been made part of the record; however, Dr. Jones wrote two addendum reports, one on November 24, 2003 and another on March 15, 2004. In his November 24, 2003 addendum, Dr. Jones opined that claimant's allowed conditions had reached MMI and further opined that claimant was capable of performing sedentary work activities. Dr. Jones assessed a five percent whole person impairment for claimant's allowed lumbosacral condition and indicated that, when taken in combination with the other allowed conditions, claimant has a 21 percent whole person impairment.
{ } In his March 15, 2004 addendum, Dr. Jones again opined that claimant was capable of sedentary work activities, assessed a 21 percent whole person impairment, and made the following statements relative to a surveillance video submitted by relator:
* * * It is evident from the surveillance video tapes that the patient can walk without the assistance of a cane with only a slightly antalgic gait (recall the patient had a 1992 right ankle surgery). It is also evident that the patient has much greater cervical spine range of motion than he demonstrated at the time of my examination. As suspected by inconsistencies during the time of my IME. The patient was observed walking forwards, as well as backwards, and reversing directions abruptly without any evidence of foot drop, tripping, stumbling of an unstable gait at anytime. The patient was observed raising his right arm and cane well above shoulder level without obvi
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