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Cannon v. Glass11/2/2000
AFFIRMED AS AMENDED.
SAUNDERS, JUDGE.
FACTS
The Claimant, Paul Cannon, sustained a work-related injury to his lower back while employed as a laborer for the Appellant, Dixie Glass (AF & D), on December 2, 1993. At the time of the accident, Claimant was a truck loader for Dixie Glass and had been employed by the company for three and a half years. Claimant injured his lower back at work when he pulled on a metal beam to hook it to an overhead crane. Dr. John Cobb, Claimant's orthopedic surgeon, diagnosed Claimant as having a herniated nucleus pulposus after a Lumbar MRI dated October 30, 1995, revealed a small central and right lateral focal disc protrusion at L4-5. Dixie Glass paid for Claimant's lower back treatment throughout his employment with the company. Claimant's employment with Dixie Glass ended in August 1996. Claimant then filed a claim for weekly indemnity benefits on January 4, 1997. Dixie Glass defeated Claimant's demand through an exception of prescription.
On August 25, 1997, Dr. Cobb recommended an anterior lumbar discectomy with a fusion to address Claimant's symptomatic disc at L4-5, nerve compression, and instability in his lower back. Claimant initially elected not to have surgery because he wanted to try conservative treatments first. Claimant based his decision not to undergo surgery on the fact that he was enrolled in vocational-technical drafting school and was restricting himself to light activities so that he could live with the pain. Unfortunately, Claimant received only temporary relief from his lower back pain through conservative treatment, which included physical therapy, exercises, and a low back injection.
In January 1998, Claimant decided to have the surgery Dr. Cobb had recommended because he continued to have back pain and was experiencing paralysis in his left leg. Claimant testified that he experienced a lot of pain when he tried to walk because his left leg lagged behind him, causing him to drag it. Claimant also testified that he experienced constant lower back pain.
On January 6, 1998, Claimant's attorney sent a letter to Dixie Glass' attorney advising him that Claimant was requesting authorization to undergo the recommended surgery. On the same day, Claimant's attorney also sent a letter to Bonnie Faulkinberry, an adjuster with Crawford and Company, requesting authorization of the surgery.
Initially, Ms. Faulkinberry attempted to schedule an appointment with Dr. John Humphries, who had seen the Claimant in December 1995 and had recommended that no surgery be done at that time. Dr. Humphries sent a letter dated January 15, 1998, stating that he no longer performed second opinions.
Ms. Faulkinberry then scheduled a second medical opinion with Dr. Thomas Montgomery on February 11, 1998. Claimant was unable to see Dr. Montgomery until March 11, 1998, however, because Dr. Montgomery was called away on an emergency the date of the initial appointment. After his examination of Claimant, Dr. Montgomery reported that he thought Claimant was a very valid individual and gave a very reasonable exam. However, Dr. Montgomery stated he would not recommend a surgery without Claimant undergoing a myelogram and a post-myelogram CT to document the herniated disc and flexion/extension x-rays to determine whether Claimant had any instability of his lumbar spine.
On April 2, 1998, Ms. Faulkinberry wrote a letter to Dr. Cobb which stated:
We enclose for your review a copy of a second opinion orthopedic report from Dr. Thomas J. Montgomery dated March 11th, 1998.
Dr. Montgomery recommends further testing prior to any recommendation for surger
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