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Thornton v. Volt Services Group6/16/2005
t a slightly higher rating was warranted. Using the 2000 edition of the Guides, Range of Motion model at Table 15-7, Dr. Lach noted that there were lesions on opposite sides that caused opposite problems, assigned separate impairments for the bulging and herniated discs, and then combined them. He assigned a 7% impairment for the L5-S1 herniation as described in Category II(C) and a 5% impairment for the L4-5 bulge as described in Category II(B). This yielded a combined impairment of 12%. Dr. Lach then stated that the DRE model, Table 15-3, permitted a 10-13% impairment for the herniated disc and associated radiculopathy under lumbar Category III, explaining as follows:
Table 15-3, p. 384 DRE Category III history of herniated disc at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy. Impairment to Whole Person10-13% I believe Michael Thornton is still having some radiculopathy. At the time he saw Dr. Guarnaschelli, he apparently did not have these complaints so Dr. Guarnaschelli used the DRE Lumbar Category II.
When deposed in November, 2002, the claimant testified that presently he was not under medical care because the insurance carrier would not approve it. He stated that he was still experiencing numbness, excruciating pain, and severe spasms in his back. He also experienced pain in both legs.
At the hearing held on January 3, 2003, the claimant testified that he had not worked since he was deposed. He continued to experience chronic pain. Asked what pain or symptoms he had in his legs, he responded that the left leg would go numb, that he had a lot of pain in both legs, and that he had back spasms. His symptoms were on both sides. He stated that his work history consisted primarily of general labor, involving heavy lifting and long hours of standing. He stated that he had attempted to get additional medical treatment but that it had been denied.
Addressing the question of impairment, the ALJ stated as follows:
In this instance, Dr. Guarnaschelli assessed Plaintiff a 5% functional impairment rating categorizing him under DRE II, which would entitle him to a 5% rating. This appears to be due to the L4-5 disk bulge that is bulging to the left, which Dr. Guarnaschelli felt was causing Mr. Thornton's leg problems.
On the other hand, Dr. Lach felt Mr. Thornton was suffering from problems not only from the L5-S1 disk, but also from the L4-5 disk and felt he would be entitled to a 12% functional impairment rating under the Range of Motion model or fall under a DRE category III and be entitled to a functional impairment within the 10-13% range.... the is persuaded by the opinion of Dr. Guarnaschelli, neurosurgeon, who found that Mr. Thornton suffered a 5% functional impairment rating as a result of his work-related injury. This is consistent with Mr. Thornton's testimony at the Hearing that his legs bother him. His left leg will go numb while he has pain in both legs. This is consistent with the testimony given by Dr. Lach wherein Mr. Thornton advised him that at the time Dr. Morassuti was to perform the L5-S1 surgery that Mr. Thornton really was not having severe right-sided pain, and that now the pain was more on the left side. That side was more consistent with the L4-L5 disk bulge on the left. Therefore, this evidence persuades the Administrative Law Judge the 5% rating given by Dr. Guarnaschelli is more accurate as it appears that the right leg problems had resolved to the point where surgical intervention was not now necessary.
Multiplying the impairment by a statutory factor of 0.75 yielded a disability rating of 3.75 for the purpose of calculating the claimant
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