Jones v. Materials Handling Group

The majority mischaracterizes the deposition testimony of Dr. James C. Harvel, Jr.

Since his is the only medical testimony of record and since his last assessment of plaintiff was that plaintiff "was unable to return to gainful employment on a part-time or full-time basis, at that time or in the foreseeable future. . . .", I must, with respect, dissent.

After Dr. Harvel had rendered the foregoing opinion, defense counsel presented to him certain surveillance video tapes of plaintiff and other videos purporting to demonstrate jobs. This is what Dr. Harvel had to say about the surveillance videos.

"The surveillance videotapes that I reviewed showed Mr. Jones to be functioning out in the community on a very limited sort of basis. In fact, he, in fact, was — appeared to be able to do many of the things that you described. He appeared at times to be able to do these activities with minimal discomfort, but at other times there were facial grimaces and there were indications that perhaps he was experiencing some discomfort.

I have to qualify my response, in all fairness to my patient, and tell you that I have had numerous opportunities as a spine surgeon to review surveillance videotapes and I do feel that often times they present a certain bias in the sense that they show patients at their best moments. And I know, as a surgeon, that patients often times go out and do the types of activities that you just described and that I just indicated that I saw Mr. Jones, but I also know that they go home and they pay for it; with increased pain and increased periods of time when they are not functional. And at times somewhat incapacitated as a result of having gone out and just tried to do things that you and I would take completely for granted. So there's two sides for every story as far as surveillance video tapes go."

To defense counsel's point that the tapes showed that on the day they were made plaintiff was active in the sense that he was able to get out in a vehicle and shop and walk and go to the post office and to go to restaurants and go to a ball field and be out for several hours a time, Dr. Harvel said:

"The tapes do show that, but once again I will respond by saying that the information that I do not have is how much narcotic pain medication the patient has taken before he goes out and does those things. How many days he had rested prior to being out, prior to being able to go out and do those things, and how many days he had to rest afterwards.

Defense counsel: Q. Right.

"A. So it's just, you know, it's information that's not contained that completes the story there."

With respect to the videos purporting to show to three different jobs that plaintiff might be able to do, Dr. Harvel said:

"I think that there is certainly a possibility that certain activities shown within the realm of those three jobs could be performed by Mr. Jones, depending upon a number of factors; one, further clinical and radiographic evaluation; two, further assessment with functional capacity assessment; three, perhaps something in the way of work hardening or work conditioning, additional outpatient therapy; four, an assessment as to his pain and what's involved as far as his medication and the side effects and whether or not they would influence his ability to perform those jobs; five, an extremely cooperative employer who allows the patient to work on a limited or part-time basis, after he has successfully completed a trial period of return to work; a situation where he would be allowed an appropriate surface to stand on and walk on and those kinds of things. A situation where he would be allowed frequent rest periods. I mean, typically one of the situations we run into with these patients is a tremendous loss of stamina and a tremendous loss of endurance; and they just simply don't have the capacity to stand, the physical capacity to stand and do even the most menial of tasks for an eight or twelve-hour period. And so there's just so — there's just an absolute laundry list of things that one has to consider before I could say yes to your question. * * * I'm just imparting to you what I know from my experience of dealing with, you know, hundreds of these patients through the years; I mean, you know, this is just a very, very tough situation. And there may be more. Those are just some things that come to mind right off the cuff as I just sit here and think about what we would be up against to try to return this man to — to work on even a very limited basis. * * * But as I mentioned earlier, statistically speaking, I mean, this is a very, very difficult situation to — to undertake here."

With respect to whether plaintiff could ever return to gainful employment, Dr. Harvel said:

"Well, generally speaking, my opinion with regard to a patient returning to gainful employment in a worker's compensation setting is based, for the most part, on the results of the functional capacity assessment, my review of a job description or information that I have based upon the job, and normally a work trial. And so I had all that information at the time and we sent Mr. Jones for a work trial which he failed. And he, of course, as you are well aware, has not gone back to work since that time; so based on all of that, my opinion would be — or based on all of that, you know, he was not, you know, he was not able to go back to work. He was not able to resume gainful employment."

In answer to defense counsel's question of whether plaintiff should "strive to continue to return to some suitable employment, of a sedentary nature", Dr. Harvel said:

"I think that it's going to be difficult at best. I think it's a huge undertaking on someone's part, a very significant challenge. As I'm sure you're aware, Mr. Lewis and Mr. Alston, you know, statistically patients with a compensable injury to the lumbar spine and subsequent surgery of the nature that Mr. Jones has undergone, statistically speaking, if these patients are not returned to work within a year and in fact, if they remain out of work for the second year, the numbers just dramatically plummet in terms of one's ability to get them back to any form of gainful employment. There are just so many factors that play and so I think that it's going to be a very significant challenge at best here."

The only physician to testify in this case testified that plaintiff is incapable of gainful employment and is likely to remain so for the remainder of his life. That is permanent and total disability within the meaning of the Workers Compensation Act.

This 5th day of October 2001.

S/_____________ THOMAS J. BOLCH COMMISSIONER

This matter was reviewed by the Full Commission based upon the record of the proceedings before Deputy Commissioner Theresa B. Stephenson, along with the briefs and arguments on appeal. The appealing party has not shown good ground to receive further evidence or to amend the prior Opinion and Award. Accordingly, the Full Commission adopts and affirms the Deputy Commissioner's holding and enters the following Opinion and Award.

2. On 17 July 1995 an employment relationship existed between the plaintiff-employee and the defendant-employer.

3. Defendant is self-insured and administers its own workers' compensation plan.

4. Plaintiff's average weekly wage was $920.24, yielding a compensation rate of $478.00, the maximum for 1995.

5. Plaintiff sustained a compensable injury arising out of and in the course of his employment with defendant on 17 July 1995.

6. Plaintiff's medicals arising out of this compensable injury are admitted into evidence as Stipulated Exhibit #2.

7. The following Industrial Commission Forms are admitted into evidence: 18, 19, 60, 28 rev., 25R, 62 and 28T.

8. The deposition of Dr. James Harvell is admitted into evidence.

9. Surveillance videos and reports are admitted into evidence as Defendants Exhibits 1 through 7.

10. The issue to be determined is whether plaintiff is permanently and totally disabled as a result of his 17 July 1995 compensable injury.

2. On 17 July 1995 plaintiff sustained a compensable injury arising out of and in the course of his employment when a forklift operator accidentally struck the table plaintiff was standing on, causing a guard to tip over and strike plaintiff in the back. Defendant accepted liability for this injury pursuant to an Industrial Commission Form 60.

3. Plaintiff originally received treatment at Pitt Memorial Hospital and later from Dr. Ira Hardy, a neurosurgeon. Dr. Hardy treated plaintiff conservatively and released him to return to work. Plaintiff returned to work 18 September 1995. Defendant paid plaintiff for the temporary total disability from 17 July 1995 through 17 September 1995. Defendant also paid plaintiff twenty-six (26) weeks for the ten percent (10%) permanent partial disability rating assigned by Dr. Hardy.

4. The plaintiff continued to have pain and missed time from work. Defendant sent plaintiff back to Dr. Ira Hardy and Dr. Hardy referred plaintiff to Dr. James Harvell, an orthopedic surgeon. Plaintiff received treatment for low back and bilateral lower extremity pain, secondary to a condition known as isthmic spondylolosthesis, which was aggravated by plaintiff's compensable injury.

5. Isthmic spondylolosthesis is an anatomical defect given to the lumbar spine that results in a slippage or misalignment between the L5 vertebral body and the S1 vertebral body. The condition causes low back pain and can cause nerve root entrapment.

6. On 19 June 1996 Drs. Ira Hardy and James Harvell performed reconstructive surgery on plaintiff's spine. Dr. Hardy performed a decompression laminectomy of the L5 vertebrae. During the same anesthetic Dr. Harvell performed a posterior spinal fusion of the L5-S1 motion segment.

7. Following the surgery plaintiff had significant improvement in the radicular pain and parenthesis in his lower extremity and some improvement in the lower back pain.

8. On 19 August 1997 plaintiff returned to work light duty. Defendant paid plaintiff temporary partial disability. Plaintiff wore a brace while at work and took medication. Plaintiff was originally supposed to work four hours a day and build up to full-time, however, plaintiff was not able to work more than three hours per day.

9. Plaintiff went out of work entirely on 14 October 1997 with Dr. Harvell's recommendation. Defendants have paid plaintiff temporary total disability at his compensation rate since 14 October 1997. Plaintiff has not worked or earned wages since that time.

10. Plaintiff saw Dr. Harvell in October 1997 but did not see him again until 16 June 1998. At that time plaintiff had been in physical therapy, an aquatics program, and a stretching program. Plaintiff still had back pain but minimal lower extremity pain. Plaintiff's medication use had decreased. Dr. Harvell did not object to a vocational assessment.

11. Dr. Harvell saw plaintiff again in February 1999 and the last visit of record is 29 June 1999. Plaintiff's long-term prognosis is fair. Plaintiff will continue to experience a moderate degree of back pain and minimal lower extremity pain. Plaintiff is able to manage his pain with non-narcotic analgesis Ultram and over-the-counter anti-inflammatories.

12. Plaintiff is not able to return to his capacity as an assembly technician. Plaintiff is able to perform work on a sedentary level, although possibly only part-time. Plaintiff is in need of further clinical and radiographic evaluation, a follow-up functional capacity examination for a clearer assessment of his capabilities, as well as possible work hardening.

13. Surveillance tapes revealed plaintiff driving around the community running errands and going grocery shopping. In the videos plaintiff can freely walk around, bend, push, pick-up items, place a large item in the trunk of his car and use a hammer on a windowsill. Plaintiff also walks three to four times per day for an approximate two mile total.

14. At the time of hearing, there were three positions at defendant which fit within Dr. Harvell's restrictions. These are the cowl assembly position, a panel assembly job and a wire harness assembly job. These jobs are primarily sedentary and would not require plaintiff to lift over ten pounds or perform any repetitive lifting, bending, stooping or squatting. These positions pay around $13.40 per hour and are regular positions that exist to be filled at defendant's place of business.

15. The greater weight of the evidence is that plaintiff is not permanent and totally disabled. Dr. Harvell rated plaintiff with a thirty percent (30%) permanent partial disability in August 1997. However, it is Dr. Harvell's practice generally to rate workers' compensation patients one year after surgery. Plaintiff improved in 1998 after he received this rating. This rating is not reflective in and of itself whether plaintiff has reached maximum medical improvement and vocational rehabilitation.

2. As a result of plaintiff's compensable injury he is entitled to temporary total disability at his compensation rate of $478.00 per week from 14 October 1997 and continuing until further Order of the Commission. N.C.G.S. § 97-29.

3. The greater weight of the evidence is that plaintiff is not permanently and totally disabled. N.C.G.S. § 97-29.

4. As a result of plaintiff's compensable injury, plaintiff is entitled to have defendant provide all medical treatment arising out of plaintiff's 17 July 1995 compensable injury to the extent it tends to effect a cure, give relief to lessen plaintiff's period of disability. N.C.G.S. § 97-25.

2. Plaintiff's counsel shall receive every fourth compensation check, payable directly to plaintiff's counsel.

3. Defendant shall pay medical expenses incurred by plaintiff as a result of his compensable injury for so long as such examinations, evaluations and treatments may reasonably be required to effect a cure, give relief or lessen plaintiff's period of disability.

4. Both sides shall pay the costs.

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

CONCURRING:

S/______________ RENE C. RIGGSBEE COMMISSIONER

S/____________________ THOMAS JEFFERSON BOLCH COMMISSIONER