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Nalley v. Keith Wheatley Construction4/21/2005
THIS OPINIONIS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.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
AFFIRMING
At the reopening of the claimant's settled award, an Administrative Law Judge (ALJ) awarded medical and open-ended temporary total disability (TTD) benefits after rejecting uncontradicted medical evidence and inferring that the claimant's present condition was caused by a worsening of his 1992 injury . The Workers' Compensation Board (Board) reversed on the ground that the record contained no substantial evidence of causation, and the Court of Appeals affirmed. We affirm.
The claimant was born in 1968 and completed the ninth or tenth grade. On September 2, 1992, he fell from a roof while working for the defendant-employer. Later that day, he sought treatment at the Flaget Memorial Hospital. Hospital records indicated that he sustained abrasions and contusions but no fractures or loss of consciousness. He complained of pain in the left arm, lower back, and posterior thighs.
Lumbar spine x-rays revealed normal alignment, configuration, and density of the bony structures; intact vertebral discs; normal disc spaces; and no evidence of spondylolysis or spondylolisthesis. The radiologist characterized them as being negative. Notes from the hospital's physical therapy department indicated that as of the claimant's initial visit on September 14, 1992, he had a severely reduced lumbar range of motion, severe thoracolumbar pain, difficulty walking, pain with transitional movements, and swelling in the back. A CT scan and a bone scan performed in October, 1992, revealed no acute process or other abnormality. In 1994, he returned to work as a security guard.
The claimant filed on application for benefits, naming both the employer and the Special Fund as defendants, but the parties agreed to settle the claim on May 11, 1995. The agreement characterized the injury as being a "Low back injury with pre-existing disc degeneration and stenosis." It provided for the claimant to receive 23 weeks of previously-paid TTD, with the defendants sharing equal liability for an additional lump sum that represented a 10% permanent, partial occupational disability. The agreement resolved the claims for vocational rehabilitation and permanent partial occupational disability but did not include a waiver of future medical expenses or the right to reopen.
Sometime in 1995, the claimant began working full-time at a sawmill in addition to working as a security guard. In 1996, he completed an 18-week course in truck driving, earned his commercial drivers' license, and began to work as a truck driver. He stated that he worked for various trucking companies until January, 2002, when he was unable to continue working due to back pain.
Medical evidence indicated that on February 8, 2001, the claimant sought chiropractic treatment from Dr. Klindt, an associate of Dr. Dearinger under whose name the records were introduced. At the time, the claimant complained primarily of cervical pain but also complained of thoracic and lumbar pain, all on the left side. He gave a history of feeling the left side of his neck pop while reaching for something with his left arm and reported that he had sustained a whiplash injury when he was 11 years old. He reported that he had been bothered by low back pain for years, that he had been diagnosed with degenerative disc disease in 1996 or 1997, and that he also thought he had scoliosis. He rated his neck, shoulder, and arm
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