55 Van Natta 4324 (2003). NORMAN T. SMITH, Claimant.
Court | Oregon |
Oregon Workers Compensation
2003.
55 Van Natta 4324 (2003).
NORMAN T. SMITH, Claimant
4324In the Matter of the Compensation of NORMAN T.
SMITH, ClaimantWCB Case No. 02-09488ORDER ON REVIEWHill and Wren LLP, Claimant Attorneys Reinisch
Mackenzie et al, Defense AttorneysReviewing
Panel: Members Biehl, Langer, and Bock. Member Biehl concurs in part and
dissents in part. Claimant requests review of
Administrative Law Judge (ALJ) Podnar's order that reduced his award of 19
percent (60.8 degrees) unscheduled permanent disability for cervical and lumbar
conditions and 5 percent (6.75 degrees) scheduled permanent disability for loss
of use or function of the left foot, as awarded by an Order on Reconsideration,
to zero. On review, the issue is extent of scheduled and unscheduled permanent
disability. We reverse in part and affirm in part. FINDINGS OF FACT We adopt the ALJ's "Findings
of Fact," except for the last sentence. We do not find that Dr. Dinneen stated
that his range of motion findings were "normal for this individual." CONCLUSIONS OF LAW AND OPINION Unscheduled Permanent Disability Claimant
compensably injured his back on February 5, 2002. The insurer accepted a
cervical, lumbar, and sacroiliac strain. (Ex. 42). Claimant treated with Dr. Khalsa, D.C., until March 11, 2002, when he
began to treat with Dr. Carvalho, M.D., who became the attending physician.
(Ex. 19). On May 29, 2002, Dr. Carvalho performed a closing evaluation, which
included range of motion testing. (Ex. 34). On June
26, 2002, Dr. Dinneen examined claimant on behalf of the insurer. Dr. Dinneen performed range of motion testing and concluded
that there was no valid objective evidence of measurable impairment due to
claimant's injury. 55 Van Natta 4324
(2003)4325 (Ex. 37). On July 15, 2002, Dr.
Carvalho concurred with Dr. Dinneen's findings. (Ex. 38). On July 23, 2002, Dr. Dinneen responded to the insurer's inquiry
regarding clarification of his June 26, 2002 report. Dr. Dinneen stated that
the range of motion measurements that he had made were within the "normal
limits for a person of [claimant' s] age and build." (Ex. 39). On July 29,
2002, Dr. Carvalho concurred with Dr. Dinneen's clarification response. (Ex.
40). On August 1, 2002, the insurer closed the claim
without an award of permanent disability. (Ex. 41). Claimant requested
reconsideration and a medical arbiter. On November
19, 2002, Dr. Berselli, M.D., performed a medical arbiter examination. Dr.
Berselli found reduced ranges of motion in claimant's cervical and lumbar
spines. (Ex. 43, pp. 3, 4). The Appellate Reviewer also asked Dr. Berselli to examine sensation loss in the plantar
surface of claimant's feet, and to describe such loss as either "partial or
total due to nerve root injury." (Ex. 42A-1). In response, Dr. Berselli
reported partial sensory loss on the plantar surface of the left foot. (Ex.
43-2). Dr. Berselli believed that his findings were valid and opined that
claimant had a partial loss of the ability to repetitively use his cervical and
lumbar spinal areas due to the accepted condition. Id.Based on Dr. Berselli's impairment findings, a November 27,
2002 Order on Reconsideration awarded 19 percent unscheduled permanent
disability and 5 percent scheduled permanent
disability for loss of function of the left foot. (Ex. 44). The insurer
requested a hearing, contending that Dr. Berselli's evaluation should not be
used to rate claimant's impairment. Finding Dr.
Dinneen's report with Dr. Carvalho's concurrence more persuasive than Dr.
Berselli's medical arbiter evaluation, the ALJ concluded that Dr. Dinneen's report should be used to rate claimant's
impairment...
To continue reading
Request your trial