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Kidd v. Ryder Transportation Services3/31/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the petitioner/employee's appeal from a decision and decree of the trial judge awarding him weekly benefits for a closed period of time. The parties were directed to appear and show cause why the matter should not be summarily decided on the grounds that the issue on appeal involves the exercise of the trial judge's discretion in selecting one (1) medical opinion over another. After thoroughly reviewing the record and considering the arguments of counsel, we find that cause has not been shown and we will proceed to render our decision in this matter without further argument.
The employee filed an original petition in which he alleged that he sustained an injury to his back on June 6, 2003 during the course of his employment with the respondent resulting in disability beginning August 27, 2003. At the pretrial conference, the trial judge granted the petition, finding that the employee sustained a lumbar strain on June 6, 2003 which resulted in partial incapacity from June 7, 2003 to February 22, 2004. The employee claimed a trial in a timely manner.
At the commencement of the trial, the parties stipulated to all of the findings of the pretrial order except for the closed period of incapacity. It was agreed that the only issue for trial was whether the employee remained disabled beyond February 22, 2004. The employee testified that he was employed by the respondent as a service technician which involved fueling and washing the rental trucks, and opening the hoods and checking fluids. He explained that this required frequent bending, climbing, and lifting up to 100 pounds.
Mr. Kidd indicated that after he was injured, he returned to a light duty job with the employer doing office work for about a month until that position was terminated. He asserted that his low back is still stiff and sore and he cannot do the lifting required in his former position as a service technician. He acknowledged that he had continued to work as a real estate agent, which he had been doing prior to the injury on June 6, 2003.
The medical evidence consists of the deposition, affidavit, and reports of Dr. William F. Brennan, Jr., and the report of Dr. Vincent I. MacAndrew, Jr. Dr. Brennan began treating the employee on June 18, 2003 for complaints of low back and right leg pain. He recommended physical therapy and light duty work. The employee attended physical therapy for about two (2) months with some initial improvement; however, his progress reached a plateau and he continued to complain of low back pain. An MRI of the lumbar spine on August 27, 2003 revealed only early disc degeneration at L4-5 and L5-S1.
Dr. Brennan testified that as of his last office visit on June 30, 2004, the employee remained partially disabled with restrictions of no repetitive bending or twisting, no lifting in excess of twenty-five (25) pounds, and no pulling down the hoods of trucks.
Dr. MacAndrew conducted an impartial medical examination of the employee on February 23, 2004 at the request of the court. The doctor noted "trace evidence of spasm on the right side," but concluded that there were no objective findings to substantiate any ongoing disability. (Ct.'s Exh. 1.) He stated that a return to his regular employment would not be injurious to the employee's health.
The trial judge reviewed the medical evidence and chose to rely on the opinion of Dr. MacAndrew as to the employee's ability to work. He noted that Dr. Brennan was apparently giving the employee the benefit of the doubt in restricting his work activities based upon his subjective complaints rather than any sig
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