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Green v. Drivers Management2/15/2002
tests. On September 2, DMI stopped paying compensation benefits and told Green to report back to work within 30 days. Exhibit 33 contains a copy of two notes by Dr. Dolorico, one of which is dated August 28, 1998, and the other September 2, 1998, both of which state that Green "can go back to work," with the August 28 note specifically stating that Green "can go back to work at a level of maximum medical improvement."
Green consulted Dr. Arnold Criscitiello, an orthopedic surgeon who had been treating Green since June 1998, about the functional capacity evaluation and Dr. Dolorico's release. Dr. Criscitiello advised Green against returning to work until further diagnostic studies could be done. However, Green returned to work for DMI on September 15, 1998. He worked for approximately 2 months driving a truck. On November 17, Green quit work for a second time, stating that the pain had increased in his legs and back and that the numbness in his legs prevented him from safely driving a truck. After an office visit on November 16, Dr. Criscitiello advised Green to stop working and stated, "I don't think that [Green] should be back to full duty work but these are issues that have been overridden [by the functional capacity assessment and independent medical examiners]."
On February 9, 1999, Dr. Myra Shayevitz examined Green to determine whether he was eligible for New York's disability benefits. The State of New York denied Green disability benefits, but Dr. Shayevitz believed that Green needed further diagnostic tests and expressed reservations about his ability to stand, walk, or climb stairs. Green attended physical therapy and took pain medication throughout 1999. An electrodiagnostic test was performed in May 1999, pursuant to Dr. Criscitiello's persistent recommendations. It indicated nerve root irritation in Green's lower back and carpal tunnel syndrome in his right wrist.
Green petitioned for workers' compensation benefits in March 1999. At trial on Green's petition, the parties stipulated that on June 9, 1997, Green "sustained an accident that arose out of and in the course of his employment with ," that Green's average weekly wage at the time of the accident was $988.72, and that DMI had already paid $14,986.82 of Green's medical bills and had paid Green $27,328 for 64 weeks of temporary total disability compensation. A summary of benefits paid shows that DMI started paying temporary total disability on June 11, 1997, and stopped these payments as of September 1, 1998.
Green testified that at the time of trial, he was 40 years old, was married, had two teenage daughters, and lived with his family in Mexico, New York. Green had a high school education, had taken a 1,000-hour carpentry course during high school, and was "certified" in carpentry. According to Green, his pain and numbness extended from his neck to his legs, feet, arms, and hands. He said he could not drive a truck because he was unable to sit for more than 45 minutes without pain and could not feel his feet depressing the brake pedal because of the numbness in his legs. He stated that he "had maybe one day" without pain since his accident in June 1997.
The trial judge awarded Green temporary total disability and permanent partial disability benefits and the opportunity to participate in vocational rehabilitation training. In addition, the trial judge ordered DMI to pay Eckerd Drug Company $1,462.55; Empi, Inc., $466.55; and Magnetic Diagnostic Resources $291.76, and further required that DMI reimburse Green and his health insurance carrier "for payments made related to the above described accident as the interest of each may appear." The temporary total disability award was $427 per wee
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