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Brown v. Paducah Rigging2/29/2000
Vacated and Remanded.
In this workers' compensation proceeding, the hearing officer granted defendant's motion for involuntary dismissal at the close of the claimant's case-in-chief at trial. For the following reasons, we vacate and remand.
At the June 16, 1999 trial, the parties stipulated that the claimant, Ike Brown, was involved in a work-related accident on October 30, 1997, while employed by defendant, Paducah Rigging, Inc. The parties also stipulated as to Mr. Brown's average weekly wage, his compensation rate, and to the admissibility of fourteen exhibits, consisting of the medical records of the various doctors seen by Mr. Brown. The only contested issue at trial was whether Mr. Brown was entitled to workers' compensation benefits after the company physician released him to return to work.
The only testimony at trial came from Mr. Brown, who testified that at the time of the accident, he was employed by Paducah as a truck driver delivering cargo, and that his duties included unloading the cargo, work he described as heavy manual labor. It was during one of his deliveries when he was unloading cargo that he fell from his truck, injuring his back. After the accident, he went to the West Jefferson Hospital Emergency Room, and was sent to Dr. Christy Montegut by Paducah.
During Mr. Brown's initial visit with Dr. Montegut on November 3, 1997, Dr. Montegut noted "moderate spasm" in the left lumbar area, diagnosed a lumbar and left gluteus contusion and muscle strain, and issued two prescriptions for medication. Dr. Montegut also released Mr. Brown to return to light duty that day and to "regular duties" on November 10, 1997. During Mr. Brown's only other visit with Dr. Montegut, on November 10, 1997, Dr. Montegut noted persistent symptoms, added a third prescription medication, yet released Mr. Brown to return to regular duties on November 17, 1997.
Mr. Brown testified that after his two visits with Dr. Montegut, he was still in "substantial pain ... in the lower part of my back." He further testified that he had pain and numbness in his legs. Mr. Brown also testified that after a few months, he tried to go back to work in a light duty capacity, "basically sweeping the warehouse." Mr. Brown testified that he could only work for a short period of time on four consecutive days before he had to go home because the pain was too great. Mr. Brown also testified that he has been unable to work since that time.
Mr. Brown testified that after being examined and treated by other physicians and receiving an epidural steroid injection, with no relief of his pain, he was referred to Dr. Kenneth Vogel, a neurosurgeon. After examining Mr. Brown and reviewing the various diagnostic tests performed on him, Dr. Vogel diagnosed a herniated lumbar disc and lumbar degenerative disc disease, which he found to be "causally related to the accident of 10/30/97." On two different examinations, Dr. Vogel noted "a moderate degree" and "a severe degree of muscle spasm bilaterally." Dr. Vogel has also found Mr. Brown to be disabled from his normal duties. Because of the positive neurological findings and the lack of progress from conservative treatment, Dr. Vogel recommended surgery.
Interestingly, while Paducah alleges that Mr. Brown has not been entitled to workers' compensation benefits since November of 1997 (approximately two weeks after his accident), Paducah has approved the lumbar fusion surgery as recommended by Dr. Vogel. This was apparently due to the report of Dr. Gustavo A. Gutnisky, a neurosurgeon appointed by the hearing officer to examine Mr. Brown, review his medical records and give an independent opinion of Mr. Brown's medical cond
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