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Waters v. Statewide Maintenance4/21/2005
Submitted: January 14, 2005
ORDER
Arthur Waters ("Claimant"), appeals a decision of the Industrial Accident Board ("the Board"), terminating Claimant's total disability benefits. Because the Court finds that the Board lacked substantial evidence for its decision that the claimant was not prima facie a displaced worker, the Board's decision is affirmed in part, reversed in part and remanded.
FACTS
Claimant suffered a compensable injury to his back and left leg on November 19, 1999 while working as a landscape laborer for Statewide Maintenance ("Statewide" or "Employer"). Following the injury, Statewide began paying Claimant total disability benefits. On October 28, 2003, Statewide filed a Petition for Review to terminate Claimant's total disability benefits. After a hearing on February 23, 2004, the Board granted Statewide's petition and terminated Claimant's total disability benefits. The Board found that Claimant was not credible and concluded that Claimant was no longer totally disabled.
A. Total Disability
At the hearing before the IAB, Dr. Evan H. Crain testified by deposition for Statewide. Dr. Crain examined Claimant on March 13, 2001 and September 10, 2003. Dr. Crain testified that he believes Claimant is physically capable of performing sedentary and possibly light duty work with a ten-pound lifting restriction. Dr. Stephen J. Rodgers and Dr. Glen Rowe testified by deposition on behalf of Claimant. Dr. Rodgers testified that he had evaluated Claimant periodically between December 18, 2000 and February 5, 2004 and believes that Claimant is incapable of working. Dr. Rodgers testified specifically that Claimant's ability to stand is limited and that he could not work as a commercial driver because he takes OxyContin for his back pain which precludes him from driving. Dr. Rodgers testified that he believes Claimant has a functional range of motion in his lumbar spine and a full range of motion in his knees, ankles and hips. Dr. Rowe testified that it was his belief that Claimant is not capable of working because of increasing left leg and back pain. Dr. Rowe had not seen Claimant since November 2001 but based his opinion on his physician's assistant's notes from an evaluation of Claimant on February 10, 2004.
Claimant testified at the hearing that he sought treatment from Dr. Richard DuShuttle after the injury and that Dr. DuShuttle diagnosed Claimant with two herniated disks in his spine. Claimant testified that he had attempted to undergo surgery for the ruptured disks but was unable to proceed with the surgery because his platelet count was too low. Claimant further testified that he has been visiting his primary care physician, Dr. Sandeep Mann (who did not testify at the hearing), every four weeks for medication. Claimant also indicated that he suffers constant pain in his back and left leg. Claimant testified that he quit school in the ninth grade and has difficulty reading and writing. He stated that he was a truck driver at one time and his only other job experience is in heavy labor and construction. Claimant testified that the medications he takes for his pain make him sleepy, dizzy and off balance.
B. Displaced Worker Status
Shelli Palmer, a vocational case manager, testified on behalf of Statewide and stated that she had performed a labor market survey and had identified seven jobs that were appropriate for Claimant given Claimant's limitations as set by Dr. Crain. In the course of her market research, Ms. Palmer met with Wendy Beck at a Hess station and was told that an employee there would not have to lift twenty-five pounds because the items could be broken down into smaller
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