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Appeal of Gamas5/19/1994
The petitioner, George Gamas, appeals the decision of the New Hampshire Department of Labor Compensation Appeals Board (board) denying workers' compensation benefits based upon its determination that the petitioner failed to prove that he was totally disabled. We affirm.
The petitioner was employed as a laborer by Anheuser-Busch in 1980 when he injured his lower back due to heavy lifting in the course of his employment. He was diagnosed as having a strain of the lumbar spine and a herniated lumbar disc. He developed debilitating psychological problems during the following year. According to Dr. Larry Politz, the psychiatrist who examined him at that time, the petitioner suffered from major depressive disorders secondary to his physical condition, combined with psychotic symptoms. In 1981, the petitioner was found by the Social Security Administration to be totally disabled.
The petitioner continued treatment with Dr. Donald Cusson, his orthopedic physician, and began psychiatric treatment with Dr. Politz in 1983. Against the advice of Dr. Cusson, the petitioner returned to work at Anheuser-Busch in 1985 and reinjured his back several months later. He received temporary total disability benefits until August 27, 1991, when a hearing officer for the department of labor found he was no longer totally disabled from employment. The petitioner appealed this decision to the board, which held a hearing on June 5, 1992.
At the hearing before the board, the petitioner submitted documentary evidence from four orthopedic surgeons who had examined him and provided opinions that he remained totally disabled. One of these surgeons, Dr. William Kilgus, testified at the hearing that, in his opinion, the petitioner continues to suffer from a herniated disc, causing pressure on the nerve roots to the lower legs rendering the petitioner "unable to return to any type of work." Dr. Kilgus' written report, based on a 1991 examination, describes "a poor range of motion of the [petitioner's lumbosacral] spine with significant pain and spasm on motion." On cross-examination, Dr. Kilgus acknowledged that the petitioner has no atrophy in his legs, and that he would expect to see atrophy in an individual with the petitioner's complaints because of disuse and nerve impairment. He also testified that surgery was not indicated because of minor "objective findings" and "symptom magnification" by the petitioner.
Also submitted on the petitioner's behalf were reports from three psychiatrists attesting to the petitioner's seriously disabling mental depression resulting from his injury. His treating psychiatrist, Dr. Politz, testified that the petitioner still suffers from a major depressive disorder "with paranoid or psychotic features." Dr. Politz described the petitioner as irrational, angry, paranoid, and totally preoccupied with his condition, i.e., "his pain and the whole disability process and his employer." His treatment with Dr. Politz consists of drug maintenance on the mood-stabilizer Klonopin and monthly supportive psychotherapy sessions. In Dr. Politz's opinion, the petitioner's poor concentration, depression, judgment and emotional controls make it impossible "at this point in time and in the near future for him to be functioning in a work capacity." At no time has Dr. Politz found the petitioner to be a "work malingerer."
The employer's orthopedic expert, Dr. Mordecai E. Berkowitz, disagreed with the petitioner's experts, based on his review of the medical records and his own examination of the petitioner. He noted that the petitioner's 1986 CT scan examination yielded a diagnosis of only "suspicious" for disc herniation, and that there was no observable atrophy of the legs.
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