Driggins v. Midwest Specialty Maint, WC16-5932 (W.C.C.A. September 21, 2016).
The employee appealed the compensation judges’ conclusion that the employee’s work injury was a temporary aggravation of a pre-existing condition and the need for restrictions and resulting wage loss were not causally related to the work injury. The W.C.C.A. affirmed this holding.
Employee worked as a general laborer for Midwest Specialty Maintenance. On January 16, 2014, Employee injured his low back and neck when lifting a 150-200 pound scrub machine with a co-worker. Employer admitted liability and paid benefits. MRI scan of the low back revealed multilevel mild to moderate degenerative spondylosis at the L5-S1. MRI of the neck revealed effacement across the ventral thecal sac at multiple levels with bulging discs and spurring.
Dr. Raih examined the employee as part of an independent medical examination for employer and insurer on two separate occasions. The first report, dated September 17, 2014, opined that the MRI scans of the low back and neck did reflect pre-existing multilevel degenerative cervical disc disease and multilevel degenerative lumbar disc disease. He concluded that the low back symptoms are a combination of pre-existing degenerative disc disease and a temporary aggravation caused by the January 16, 2014 work injury.
Dr. Mann, on February 3, 2015, found significant improvements after the employee’s 24 sessions of treatment, and stated employee had reached maximum medical improvement. The second IME report, dated March 17, 2015, opined that the employee’s injuries to the neck and low back were degenerative in nature and not related to the employee’s January 16, 2014 work injury. Based on this report, the employer and insurer filed a Notice of Intention to Discontinue Benefits (NOID) on March 24, 2015, seeking to discontinue TPD. Employee, in response, filed a claim petition, seeking TPD from March 16, 2015 to present and continuing, and penalties.
To establish TPD, the employee must prove four factors under Dorn v. A.J. Chromy Constr. Co. First, the employee must show he sustained a work related injury resulting in disability; second, he must show he suffered a loss of earning capacity that is causally related to the work related disability; third, the employee is able to work subject to the disability; and fourth, there is an actual loss of earning capacity. The compensation judge found Dr. Raih’s opinion persuasive that Employee did not have a work related disability.
The W.C.C.A. found the compensation judges’ conclusion was supported by substantial evidence and not clearly erroneous in its’ holding that the employee’s testimony was unreliable and finding Dr. Raih’s opinion that Employee had no work related disability persuasive. Furthermore, the W.C.C.A. stated “what is important in establishing TPD is not the coincidental nature of restriction to the injury, but rather the evidence taken as a whole.” Lastly, the court concluded with finding Dr. Raih’s opinion persuasive in that employee’s pain was out of proportion with objective findings and that the cause of pain was significant degenerative changes.