635816.doc

I.C. NO. 635816, GARY RUBLE, Employee, Plaintiff v. WILCOHESS, LLC, Employer, ESIS, an ACE USA COMPANY, Carrier, Defendants.  OPINION AND AWARD by MYRA L. GRIFFIN, Deputy Commissioner, N.C. Industrial Commission.  Filed 14 April 2010.



	This case was heard before the undersigned on September 15, 2009 in Asheville, North Carolina.  Thereafter, the parties were allowed time to take additional testimony as necessary and to submit contentions and proposed opinion and awards.  After receipt of the parties' contentions and proposed opinion and awards, the record was closed on January 19, 2010. The matter is now ready for decision.
A P P E A R A N C E S
	Plaintiff:	Cobourn & Saleeby, LLP, Attorneys, Spartanburg, South Carolina; Jeffrey L. Kyriakakis, appearing.

	Defendants:	McAngus Goudelock & Courie, PLLC, Attorneys, Charlotte, North Carolina; Joseph N. Hamrick, appearing.

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The undersigned finds as fact and concludes as matters of law the following which were entered into by the parties as:
STIPULATIONS
	1.	All parties are properly before the court and that the court has jurisdiction over the parties and over the subject matter.
	2.	The parties to this action are subject to the Act, and that plaintiff was an employee of defendant-employer on August 25, 2006, February 16, 2006 and April 17, 2006.
	3.	Plaintiff sustained compensable injuries by accident to his back on August 25, 2005, February 16, 2006 and April 17, 2006.  All claims have been accepted as compensable by defendants.
	4.	The workers' compensation carrier for defendant-employer was ACE USA.  ESIS managed the risk for defendant-carrier.
	5.	All parties have been correctly designated and that there is no question as to misjoinder or nonjoinder of parties.
	6.	Plaintiff's average weekly wage is $1,056.00, yielding a compensation rate of $704.00.
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The following were submitted to the undersigned as:
EXHIBITS
	1.	Stipulated Exhibit Number 1, Pre-Trial Agreement
	2.	Stipulated Exhibit Number 2, Medical Records, Vocational Reports, Industrial Commission Forms
	3.	Stipulated Exhibit Number 3, Plaintiff's Job Search Log
4.	Stipulated Exhibit Number 4, Letter from Social Security Administration advising plaintiff that deducted child support payments from Social Security Disability benefits
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The following were received into evidence as:
DEPOSITIONS
	1.	Oral deposition of Adger Brown, vocational rehabilitation specialist, taken on October 29, 2009.
	2.	Oral deposition of Christopher J. Chittum, M.D., taken on November 5, 2009.
	3.	Oral deposition of Donna Reynolds, vocational case manager, taken on November 10, 2009
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The following were submitted to the undersigned as:
ISSUES
	1.	Whether plaintiff is permanently incapable of returning to work at pre-injury wages as the result of the admittedly compensable claim?
	2.	Whether vocational rehabilitation services should be terminated?
	3.	Whether the Industrial Commission should order an IME regarding whether plaintiff is a candidate for the posterolateral arthrodesis with pedicle screw instrumentation as recommended by Dr. Christopher Chittum on September 29, 2008?
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Based upon all the competent evidence of record, the undersigned makes the
following:
FINDINGS OF FACT
	1.	At the time of the hearing before the undersigned, plaintiff was 43 years old with a high school diploma.  Plaintiff completed one semester of physical therapy comes at a local technical college, but did not complete the program.  Plaintiff was a member of the Army National Guard and a member of the United States Air Force.  He received an honorable discharge from the Air Force in 1988.  Plaintiff's work history consists of commercial truck driving positions.
	2.	In March 2004, defendant-employer hired plaintiff as a truck driver.  His duties with defendant-employer consisted of driving a gasoline tanker to a local filling terminal, filling the tanker with gasoline and delivering the fuel to multiple filling stations.  Plaintiff worked an average of 40 hours per week.
	3.	Plaintiff sustained compensable injuries to his back on August 25, 2005, February 16, 2006 and April 17, 2006.  Defendants admitted compensability of all three claims.
	4.	Plaintiff's initial treatment consisted of epidural steroid injections and medication therapy.  Due to a lack of improvement, plaintiff was referred to Dr. Robert Flandry, a neurosurgeon.  After reviewing a new MRI scan, Dr. Landry diagnosed plaintiff with nerve root compression at L3-L4 and L4-L5 with a definite L-4-L5 herniation.  On August 29, 2006, Dr. Flandry performed a left-sided nerve root decompression at L3-L4 and a nerve root decompression and partial discectomy at L4-L5.
	5.	On October 9, 2006, plaintiff presented to Dr. Christopher Chittum, Dr. Flandry's medical partner, for an unscheduled visit due to swelling around his lumbar incision site.  On October 11, 2006, Dr. Chittum performed a repair of plaintiff's lumbar cerebrospinal fluid leak.
	6.	On October 25, 2006, plaintiff reported worsening leg pain and that he was unable to stand for any length of time.  An MRI confirmed a recurrent disc herniation at L4-L5 for which plaintiff underwent an extended laminotomy at L4-L5 and discectomy at L4-L5 on October 31, 2006.
	7.	On January 12, 2007, plaintiff presented to the emergency room at Mary Black Hospital.  While undergoing physical therapy for his back, plaintiff suffered a myocardial infarction.  As a result, he underwent a cardiac catheterization and was ultimately cleared to resume physical therapy.  Plaintiff continued physical therapy for another four months and then he underwent a series of epidural steroid injections.  However, this treatment failed to provide significant relief from his pain.
	8.	On September 21, 2007, plaintiff underwent percutaneous laser disc decompression surgery at L2-L3 and L3-L4.  Following the surgical procedure, plaintiff underwent another course of physical therapy.
	9.	On May 13, 2008, plaintiff underwent an XLIF procedure, performed by Dr. Chittum, who assumed plaintiff's care after Dr. Flandry left the practice.  Six months after the XLILF procedure, a CT scan confirmed no fusion had taken place at any of the affected disc levels.  Dr. Chittum advised plaintiff he could consider an instrumented fusion procedure.  He explained one of the risks of the procedure was that the areas of the spine above and below could be stressed to the point of deterioration, which would require even further surgery.  Plaintiff elected to forego a sixth surgery for his back.  Dr. Chittum agreed with plaintiff's decision about the surgery.  Based on the competent medical evidence of record, the undersigned finds the proposed instrumented fusion procedure would not effect a cure, give relief or lessen plaintiff's period of disability.  Thus, plaintiff's election to forego the procedure is reasonable.
	10.	On November 25, 2008, plaintiff underwent a functional capacity evaluation.  It was noted by the therapist plaintiff gave excellent effort in completing the evaluation.  The results indicate plaintiff was unable to safely lift weight from the floor to his waist.  Plaintiff also had significant limitations with regards to sitting, standing and walking.  He cannot bend forward at the waist for longer than 45 seconds and he is not physically capable of climbing stairs without pulling himself up the stairs.  He is also unable to crouch or kneel.  Upon review of the FCE, Dr. Chittum stated plaintiff was not able to safely perform his job duties as a truck driver secondary to weakness.
	11.	On December 9, 2008, Dr. Chittum released plaintiff at maximum medical improvement and referred him to a comprehensive pain management program to address his chronic pain.  Dr. Chittum assigned plaintiff a 30.66% permanent partial disability rating to the lumbar spine.  As of the date of the hearing before the undersigned, plaintiff continues to treat at this pain management program.
	12.	Plaintiff continues to experience constant back and left leg pain with numbness.  Due to his pain level, plaintiff is unable to sit or stand for longer than 15 minute intervals.  To alleviate his pain, he changes positions frequently.  He is currently taking several pain medications as prescribed by the pain management specialist, but is still not experiencing any relief in his symptoms.
	13.	In January of 2009, defendant-employer initiated a vocational rehabilitation program.  Donna Reynolds, a vocational rehabilitation specialist, was assigned to plaintiff's case.  Ms. Reynolds indicated plaintiff was capable of performing work in sales or as an operations manager.  Plaintiff did not have experience in either field.  Plaintiff also conducted an independent online job search, but was unsuccessful in locating employment.  During the time Ms. Reynolds has worked with plaintiff, she has identified about 17 potential job leads.  Ms. Reynolds admitted plaintiff needs retraining and the vocational rehabilitation process has been "static".  Without additional training, it will probably be difficult for plaintiff to locate employment based on his education, work experience and permanent work restrictions.
	14	In January of 2009, plaintiff met with J. Adger Brown, a rehabilitation consultant and certified disability management specialist.  Based on his meeting with plaintiff and a review of the medical records, Mr. Brown determined plaintiff is totally disabled from any and all forms of employment.  In his opinion, plaintiff will remain totally disabled from employment until medical intervention substantially improves his condition.
	15.	Dr. Chittum opined based on plaintiff's limitations with regard to sitting, standing, bending and chronic pain, it would be difficult for him to perform a clerical position.  When questioned whether there were any jobs he felt plaintiff was cable of performing in his current condition, Dr. Chittum responded, "I can't think of anything specifically now.  It doesn't mean it doesn't exist."
	16.	Despite his relatively young age, given plaintiff's educational level, his limited work experience as a truck driver, his physical condition following five back surgeries, which includes significant limitations on walking, sitting and standing, the inability to climb stairs, crouch or kneel, his inability to bend forward at the waist for more than 45 seconds, his constant back and left leg pain with numbness and dependence on pain medication, and as evidenced by plaintiff's unsuccessful efforts to obtain work as well as the unsuccessful efforts of vocational rehabilitation, it would be futile for plaintiff to continue to seek employment.
	17.	Based on the greater weight of the evidence, the undersigned finds plaintiff is permanently and totally disabled from employment.
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	Based upon the foregoing findings of fact, the undersigned concludes as follows:
CONCLUSIONS OF LAW
	1.	On August 25, 2005, February 16, 2006 and April 17, 2006, plaintiff sustained compensable injuries by accident resulting in five back surgeries.  N.C. Gen. Stat. §97-2(6).
	2.	In order to prove permanent total disability, plaintiff must prove that he is unable to earn the same wage he earned prior to his compensable injuries, either in the same employment or in other employment.  Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2D 682 (1982).  An employee may meet his burden of proving disability in one of four ways:  (1) the production of medical evidence that he is physically or mentally, as a consequence of the work-related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but it would be futile because of pre-existing conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.  Russell v. Lowes Product Distribution, 108 N.C. app. 762, 765, 425 S.E.2d 454, 457 (1993).
	3.	In this case, plaintiff has proven under prong third prong of Russell he is permanently and totally disabled from any employment.  Despite his relatively young age, given plaintiff's educational level, his limited work as a truck driver, his physical condition following five back surgeries, which includes significant limitations on walking, sitting and standing, the inability to climb stairs, crouch or kneel, his inability to bend forward at the waist for more than 45 seconds, his constant back and left leg pain with numbness and dependence on pain medication, and as evidenced by plaintiff's unsuccessful efforts to obtain work as well as the unsuccessful efforts of vocational rehabilitation, it would be futile for plaintiff to continue to seek employment.
	4.	Based upon plaintiff's physical condition and resulting work restrictions, age, education, training, and work experience, plaintiff is permanently and totally disabled from suitable employment as a result of his compensable injuries of August 25, 2005, February 16, 2006 and April 17, 2006.
	5.	As a result of plaintiff's total incapacity for work which was proximately caused by his compensable injuries by accident, plaintiff is entitled to receive disability compensation and medical compensation during his lifetime.  N.C. Gen. Stat. §97-29.
	6.	As a result of his compensable injury, plaintiff has received medical treatment and is entitled to receive further medical treatment that would effect a cure, give relief or lessen his period of disability.  N.C. Gen. Stat. §97-25.
	7.	The proposed instrumented fusion procedure would not effect a cure, give relief or lessen plaintiff's period of disability.  Thus, plaintiff's election to forego the procedure is reasonable.  N.C. Gen. Stat. §97-25.
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	Based upon the foregoing Findings of Facts and Conclusions of Law, the undersigned enters the following:
A W A R D
	1.	Subject to a reasonable attorney's fee approved herein, for his compensable injures, defendants shall continue to pay total disability compensation at a rate of $704.00 per week for the remainder of plaintiff's lifetime.
	2.	A reasonable attorney's fee of 25% of compensation due plaintiff under Paragraph 1 of this Award is approved for plaintiff's counsel and shall be paid directly to plaintiff's counsel in the value of every fourth weekly payment.
	3.	Defendants shall pay all medical expenses incurred or to be incurred as a result of plaintiff's compensable injury as long as the same are reasonably designed to effect a cure, provide relief or lessen plaintiff's period of disability.  Defendants shall provide all plaintiff's future medical expenses for these conditions as well.
	4.	Defendants shall pay an expert witness fee to Dr. Christopher Chittum in the amount of $700.00.
	5.	Defendants shall pay the costs.
	IT IS FURTHER ORDERED that this claim be REMOVED from the Buncombe County active hearing docket.



			S/			
MYRA L. GRIFFIN
DEPUTY COMMISSIONER

I.C. No. 635816	Page 7

Code:  123