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Thornton v. Volt Services Group6/16/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
It is undisputed that the claimant sustained a work-related back injury that was partially disabling. Central to this appeal is the amount of AMA impairment that it caused and, therefore, the amount of his income benefit. Relying on a medical report that responded to questions that were not of record and that referred to symptoms on only one side of the claimant's body, the Administrative Law Judge (ALJ) determined that the injury caused a 5% impairment due to a bulging disc although it deprived the claimant of the physical capacity to perform the type of work that he performed at the time of the injury.
A majority of the Workers' Compensation Board (Board) concluded that the ALJ erred by disregarding uncontradicted medical testimony that the claimant's injury caused impairment from a herniated disc as well as the bulging disc and by failing to award benefits for both conditions. A minority concluded that there was a difference of medical opinion and that the majority had substituted its judgment for the ALJ's.
Persuaded that the minority view was correct, the Court of Appeals reversed and reinstated the ALJ's decision. Although we agree that the majority substituted its judgment when concluding that the evidence compelled a finding that both conditions caused a 12% impairment, we are convinced that the ALJ erred as a matter of law by disregarding the uncontroverted medical evidence that the injury caused a herniated disc and resulting impairment. Therefore, we reverse and remand for the ALJ to determine the extent of the impairment and to award benefits for both conditions.
The claimant was born in 1956. He completed high school and 3 semesters of college but received no specialized vocational training. He served in the U. S. Army from 1978 through 1982, achieved the rank of E-4, and received a less than honorable discharge.
In January, 2000, the claimant began working for the defendant-employer, a company that provides temporary workers to other businesses. Sometime in April or May, 2000, his assignment was to work as a trash collector at Dynacraft. He stated that the work required him to lift garbage cans that weighed about 50 pounds when empty and that sometimes he lifted heavy objects such as car doors.
On May 30, 2000, the claimant injured his back when he attempted to lift a 6'x 7' dock plate. He stated that the dock plate had become stuck and that he pulled on the attached chain in an attempt to lift it manually. While doing so, he heard a crunching noise in his back, so he stopped. Back pain prevented him from completing his shift and continued the next morning. At that time, he went to the emergency room at Baptist Hospital East, where he was x-rayed, given an injection for pain, and referred to Baptist Worx. Treatment at Baptist Worx consisted of pain medication and muscle relaxers. At the follow-up visit, he was given additional medication and released to full-duty work.
He attempted to perform his usual duties the first two days after returning to work, but on the third day he was given lighter duty such as mopping and sweeping.
The claimant testified that eventually he came under the care of Dr. Morassuti, a neurosurgeon. Dr. Morassuti recommended surgery but apparently did not know that the claimant's pain fluctuated from one side to the
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