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McGee v. Lumber12/22/2000
he injury in the J.D. complaint stated, "Claimant was banding lumber on flat car, slipped and stepped down off railroad flat car and injured his back." The other complaint named John Erdman Logging and Associated Loggers Exchange as the employer/insurer. The Erdman complaint attributed the injury to McGee's operation of the skidder. This complaint noted, "back pain became increasingly worse as skidder continually struck objects and bumped."
The two complaints were consolidated on August 10, 1995, by Referee Amy Howe. On September 4, 1996, McGee filed a motion to bifurcate the hearing, wherein McGee requested the Commission to initially determine the issue of liability. McGee's main reason for requesting the bifurcation involved the fact that McGee was participating in a treatment program and felt that a more accurate assessment of his physical functioning level could be made after he had completed the program. An order was issued on September 12, 1996, bifurcating the issues and setting the hearing for December 10, 1996, to decide "whether claimant's current condition causally related to the accidents and injuries of January 20, 1994, and/or May 1, 1994."
Various testimony was presented at a hearing held on December 10, 1996, in order to determine the liability issue. At this hearing, the attorney for J.D., Mr. Harmon, argued that any medical treatment McGee sought related to McGee's employment at Erdman Lumber, not to the injury McGee sustained while working at J.D. The attorney for Erdman Lumber, Mr. McPeek, argued that McGee was not involved in any type of accident during his employment at Erdman and that McGee suffered from a pre-existing condition due to the 1992 accident at J.D.
At the December hearing, Dr. Kersting, a family practitioner, testified that in his opinion, those who work in the logging industry carry a greater risk for development of low back pain, either from an acute injury or due to degenerative arthritic disease in the lower lumbar back. He attributed McGee's lower back condition to repetitive "pounding of the low back" while in a seated position, in addition to the "acute exacerbation" with the January 20, 1992 accident and 1994 incidences of increased pain without any precipitating events. He diagnosed McGee with chronic back pain due to the initial injury and degenerative arthritis.
Dr. Alyea, an orthopedic surgeon, stated there was not much objective evidence to account for McGee's complaints of pain. He discounted the theory that McGee's operation of the skidder caused disc herniation or bulging. He did not find McGee to have any permanent physical impairments.
Dr. Phillips, a physician who evaluated McGee, concluded claimant McGee had no neurological deficits and diagnosed him as having had a lumbosacral sprain in January of 1992 in the presence of degenerative intervertebral disc disease with persistent pain. He found McGee physically capable of employment and rendered an impairment of 6% of the whole person for two-level degenerative disc disease, inoperable with persistent symptoms, and apportioned one- third caused by the January 1992 accident and the other two-thirds due to natural progression of the disease process. Dr. Phillips stated that McGee did not experience a specific injury at Erdman and that the 1994 back spasms were a "temporary aggravation of his condition."
Dr. Gill, a mechanical engineer with an emphasis in human factors, testified that McGee's symptoms were consistent with excessive exposure to whole body vibration caused from operating a skidder and that McGee should not have returned to work as a skidder operator following the January 1992 accident. Other degenerative changes in claimant'
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