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Smith v. Goodyear Tire & Rubber Co.6/7/2005
ow back pain, left hip pain, and bilateral lower extremity pain. The nerve conduction studies in 1997 showed chronic bilateral L5-S1 radiculopathies and also findings associated with diabetic neuropathy. The nerve conduction studies performed on 9 August 1999 showed interval progression of the diabetic polyneuropathy, more motor axon loss and subsequent distal slowing of conduction. Dr. Walsh noted that he could not determine whether plaintiff's L5-S1 radiculopathies were present due to the severity of plaintiff's diabetic neuropathy. Plaintiff's 1998 MRI showed desiccated and bulging discs at L4-L5, unchanged since the previous study in 1997. Dr. Jaufmann related plaintiff's disc problems to his 27 June 1994 injury. Based on the nerve conduction study by Dr. Walsh, Dr. Jaufmann was of the opinion that by 23 September 1999, plaintiff had two problems that contributed to the severity of his symptoms, but the diabetic polyneuropathy was plaintiff's primaryproblem. He also opined, however, that an EMG nerve conduction study cannot distinguish between a malfunction of the nerve based on nerve impingement or the diabetic neuropathy. 21. Plaintiff's incapacity to work since 26 February 1999 is due to the compound effect of his chronic, bilateral L5-S1 radiculopathies and his diabetic polyneuropathy. Based on plaintiff's educational level, his limited ability to read and write, his prior heavy manual labor, work history, his physical limitations caused by his work-related injury and his non-work-related medical conditions, plaintiff is incapable of working in any employment. 22. Even if plaintiff did not have diabetic polyneuropathy, he would only be capable of 'doing something' in the sedentary work classification, according to Dr. Jaufmann. 23. Based on plaintiff's educational level, aptitude and past work history, it would be futile for plaintiff to seek employment considering the physical limitations and pain caused by his work-related injury even if he did not have diabetic polyneuropathy.
Specifically, defendant argues the Commission erred in awarding benefits because plaintiff failed to prove his ongoing disability, and further, failed to prove plaintiff's low back radiculopathy alone makes him incapable of any employment. In support of their argument, defendants point to Dr. Jaufmann's 15 November 2001 deposition in which he testified:
I think that if he did not have the diabetic polyneuropathy, maybe he couldn't build tires or do heavy lifting. I think he'd be able to do something. I think he'd be able to drive acar. I think he'd be able to be in a job where he could sit and stand and, you know, have some better quality of life than what he has right now. But I think the polyneuropathy and the neurological condition is what really prevents him from having even a sedentary job or a light duty job.
Dr. Jaufmann further testified to plaintiff's conditions:
A: There are two problems going on here. One is the diabetic polyneuropathy, which is a slowly progressive problem. The other is the lumbar radiculopathy. They both affect the same nerves. So if you have two injuries at the same time they can each compound each other.
. . . Q: So, in Mr. Smith's case, where he's been injured and he has diabetes . . . could [that] be indicative of the fact that the surgery he had . . . slow to heal because of the diabetes?
A: Well, his E.G.'s that I have here have-- have shown a bilateral radiculopathy, . . . so clearly he had a chronic injury that persisted. That didn't go away. But what has changed is the--the degree of polyneuropathy. . . .
Q: Okay. And you said previously that a traumatic incident to--to the spine or to the nerve could ex
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