Nance v Aramark Uniformed Services Corp.
Inj. No. 12-104863
DOLIR Nov. 30, 2017
The Commission increases an award of PPD on appeal for a 68 year claimant alleging an inability to work following a multi-level cervical fusion. The Commission deferred to the ALJ finding that the claimant's testimony was not convincing, credible or consistent.
The claimant was struck in the head between his eyes with a pipe in 2012 and the ALJ awarded 45% PPD. The 68 year old claimant describe acute onset of neck pain that he states after surgery still requires him to lie down during the day and take naps. He states he relies upon a cane to maintain his balance. He testified the employer forced an early resignation and refused to provide other benefits if he did not quit his job.
Claimant reported he did not report back or balance problems in the course of some of his treatment. He state he "forgot" about prior litigation involving claims of severe and disabling injuries and balance and sleep problems. Several witnesses provided conflicting evidence about prior job discipline or plans to retire.
Claimant had a C4-C7 fusion by Dr. Kennedy and Dr. Raskas. He had a revision surgery for pseudo-oarthrosis. Dr. Volarich testified that the accident aggravated an asymptomatic multi-level degenerative cervical spine and rated 85% for PPD.
Doctor Kennedy felt that claimant had limitations and that the "lack of full effort" noted during therapy evaluations was of limited importance. He felt the fusion was solid and the claimant was employable and that he did not need to lie down because of the surgery.
Doctor Kitchens felt claimant was employable and the three-level fusion would not cause any balance issues.
Gonzelez testifies that claimant was unemployable based on restrictions from Dr. Volarich that imposed less than sedentary capacity.
Jim England testified that claimant was employable within Dr. Volarich's restrictions, except for the toxic "need to lie down."
The ALJ found Dr. Volarich less credible and did not award future medical care. The ALJ noted claimant's credibility was substantially affected by inconsistencies on major issues such as the need to lie down, the conflicting medical opinions whether he has a myelo-radiculopathy, and found inconsistencies on other collateral issues such as withdrawing money from a retirement fund, and use of a computer. The ALJ found the testimony was not convincing, credible or consistent.
The Commission found that claimant's testimony lacked credibility but suggested inconsistencies may not be intentional and flow from some memory problems. The Commission stated it addressed credibility based on the medical testimony and found Dr. Kennedy persuasive that claimant was employable with restrictions. The Commission ordered open medical benefits open because of continued pain complaints from post-laminectomy syndrome.
AL Robbins
Atty: Hennessey, Amsler
Experts: Volarich, Gonzalez, Kitchen
Treater: Kennedy, Raskas
